So today, I have Monica Gilroy, who is an attorney in Atlanta and practices throughout the state of Georgia.
She’s licensed to do that.
And she has 28 years of experience. And she’s going to walk us through this process of evicting attorney.
Monica is a trial lawyer. She specializes in real estate and landlord and tenant law.
Thanks so much for joining me and walking us through this process.
Monica: Thank you, Matthew. I appreciate the opportunity.
Matthew: Yeah, so let’s jump right in.
And we have a lot of people that call us at gkhouses and want to know, what is the process for eviction?
So, I’ve got a tenant that, let’s say the, what most people want to know is, my tenant is not paying rent.
I have a tenant right now that’s not paying rent. What is the first step in the process for an eviction?
Monica: Sure, absolutely. Georgia is a pretty friendly state for landlords and owners.
The process is pretty simple.
And you can find it pretty much anywhere online. You can find it also in our Georgia Landlord Handbook, which is also there as well.
You would start first always by going to your lease. And you want to take a look at what’s in your lease.
But usually the first step is getting some kind of notice or notification to the tenant that they are late or behind in what they owe.
It is important to do this in writing and to be very specific as to how much is owed.
And when they need to catch up by, or how much they need to send to avoid any escalation of the process.
Monica: Yeah, that’s a great question. No, under most leases in Georgia, it’s going to say, first of all, your lease will control.
But it’s going to say, usually that it has to be in writing, and usually certified mail, or personal or hand delivery.
Personal hand delivery, though, can sometimes be a little difficult because it’s hard to prove.
So I would recommend some kind of overnight delivery or certified mail to do that.
Monica: They do. Yeah, they do. Many people utilize the Georgia Association of Realtors lease forms.
There’s a number of forms that go with that. It’s available. You have to buy a license.
It’s about 190 something dollars a year. In that document, for example, which is widely used, it simply says that you have to give notice of the default and the cancellation of the lease., meaning that, because of their failure to pay rent, that the lease is going to be canceled, and that you want them to pay and basically get out of the house as well.
Monica: Like, for example, under the Georgia Association of Realtors lease, it’s about 3 days.
Sometimes people have different dates written in. So, again, it’s really important that your written lease controls.
If you don’t have a lease for some reason, there’s a lot of other issues that go along with that. More time is required.
But, on average, if your lease says the number of days, that’s how long they have.
Again, for example, Georgia Association of Realtors, 3 days.
Monica: Correct. If you do not have a lease, then the law defines it. And that’s a 30-day response.
Monica: That’s exactly right. And that’s exactly what it’s called, the Georgia Landlord-Tenant Law.
Monica: You can find one if you needed it.
Monica: Exactly. Once the actual…Well, let’s say, yeah, let’s say there’s no response, right?
And they say, we’re not going to pay, you know, record to reinstate, or usually they just go silent.
If you’ve not had any response, let’s say in that three day timeframe, you can go ahead and file for an eviction, which is called filing for a dispossessory.
You would go to the magistrate court, which is like our People’s Court. Every single county in Georgia has one of those.
It is the place where you can represent yourself as an owner and a landlord, or if you have a property manager, a property manager can file on your behalf under their powers that you’ve given them through a property management agreement.
Matthew: And this is just a single piece of paper that you file with the court?
Monica: Exactly. Exactly. It’s a very small short piece of paper, but it has all the elements of what’s going on.
And then it asks for one of two things, either payment and/or possession.
Meaning, do you want money and they can stay, or do you want money and you want them to get out?
That makes a big difference…I’m sorry, go ahead.
Monica: It sure does, because, if you want them to actually also have to pay money.
You have to have that lawsuit or that dispossessory action actually physically served upon them by the sheriff.
If you just want them out, which sometimes an owner does, they’re like, “I just want these people out,” then it’s okay for that lawsuit.
The eviction document, to literally be just tacked, T-A-C-K, nailed or taped on the front door.
And if it’s money that you’re seeking, they’re going to have to be personally served in order to get a money judgment.
And to get them out, which could take a little longer.
Matthew: The Only, You Mentioned That This Is Typically Filed In Magistrate Court.
Monica: There is, yeah. Depending on how large of a county’s population there is, some counties like in Metro Atlanta, Fulton County, Gwinnett County, they have what’s called state court. And then you can file it in state court.
But the problem with state court is, is that you would absolutely have to have an attorney if you were an LLC.
So, like, if you’re a owner of a piece of property, and you’re also the landlord.but you own it through an LLC, not as John Smith, but John Smith LLC, an LLC cannot appear on its own at state court, where in magistrate court, you’re able to do so.
Matthew: So, once this is filed with the magistrate, let’s go magistrate court because that’s 90 plus percent.
Once it’s filed, then what is the next step?
It’s basically getting started, and you mentioned a little bit about getting started, but just clarify that.
Monica: Sure. That’s exactly right, Matthew.
You pay a little bit of an additional fee, and the sheriff will be responsible, or the marshal, for actually serving the lawsuit.
And again, depending on what you’re seeking, if it’s just possession or the property back, they’ll be potentially just taped or nailed to the property.
Or if it’s personal service, they’ll actually go out, knock on the door, hand it to the person.
And then, depending on when they’re served, either by the tack and nail or personally, they’ll have seven days from the date of that service to answer.
Matthew: So, we’ve put them on notice that we’ve filed this lawsuit, and then now they know they have seven days to answer it.
Monica: That’s exactly right, Matthew. They may have…First of all, they may not respond at all, which means you would win automatically.
They may respond, but they may make some kind of complaint or excuse like, “I’m not paying because they wouldn’t accept my payment,” or “I’m not paying because of this.”
Or they may not pay because…
They may, I’m sorry, they may answer and then they would also file a counterclaim or counter suit.
For example, that might be, “Well, the reason I haven’t paid is, I haven’t been able to sleep in my bedroom because there’s a leak in the bathroom that makes the property uninhabitable or unlivable or an unsanitary condition.”
Matthew: Gotcha. So, that happens and then we get 7 days.
Monica: That’s right. You get a default judgment, and what you’re looking for in an eviction action, when you file it, Matthew, is what’s called a writ of possession.
And that, basically, is the idea that under the law, we have a right to take back the property from a tenant.
So, yes, if nobody answers, the court just automatically issues that writ of possession, W-R-I-T.
And there’s nothing more you have to do other than what we’ll talk about in a minute with getting them put out.
But usually, people answer, so you find yourself assigned a court date, and you need to actually appear in court.
I mean, somebody can really handle this themselves, or their property manager can handle it up to this point.
But it’s also very important to get those steps correct, because the last thing you want to do is evict somebody incorrectly or attempt to, because judges are not very…
Monica: That’s exactly right. I’ll tell you a story even just from very recently.
I was recently in court, and although there was, although we had a property manager involved, the property manager hadn’t gotten the right permission to be sure that they could go into court.
I’ve also seen situations where owners come in, and they don’t have the proper paperwork.
But the value add of property manager is wonderful, because they’re the experts.
They’re able to actually do all these steps for you and do them properly.
And also, you can get advice from a property manager as to when you might want to bring in an attorney.
For example, just recently I was in court this morning, and there was a counterclaim involved, meaning someone was suing the owner-landlord.
So, you know, the owner-landlord should want to have a lawyer that’s experienced come in, even if it’s just for a few hours, to fight that, because you wouldn’t want to end up with a bad decision against you.
I mean, even me as a property manager, if I’m doing my job, I’m not addicting people every day.
But that’s kind of your job is to help us walk through this process of eviction.
Monica: That’s exactly right.
It’s more and more common to see attorneys coming into court on behalf of landlords or via a property manager.
And the process runs more smoothly. I will tell you, the courts appreciate it a lot.
The courts also look at you a little more favorably as the landlord by having involved a property manager or an attorney because it shows that you’re trying to do things right.
And you do get that little extra step up when you go into court, as opposed to someone who may be trying to do it right.
But maybe by doing it wrong, it’s looked at a little differently by the judge.
Matthew: Perfect, perfect. All right, so now we’re going to court and we’ve hired our attorney. And talk to me about being prepared for court. You mentioned this a little bit earlier in one of your stories.
Monica: Absolutely. Let’s assume we’re doing this through a property manager.
So, it’s not necessarily…Let’s say our owner has hired a property manager.
It’s important for the property manager that handles this tenant to come to court.
They need to have a copy of the lease.
And they should bring an extra copy of the lease in case the judge says, “Hey, I need a copy.”
If you’re going on as a do-it-yourself, you need to be sure you have at least one, but also a full copy of the lease.
That was one of my problems here today is that we were missing some paperwork from the lease itself that would have made it a little tricky.
But for the way I was able to get around it, you know, and what I was able to say.
Now, again, a property management company, very helpful in this. Usually one press of a button, out spits what’s owed.
It calculates the attorney’s fees that may be due, the late charges, any other fees that might be allowed.
And it’s great if you can have that to your attorney, not just when you go into court, but also bringing it right up, calculating it through the day of court.
You don’t want to rely on a lawyer like me.
So, it’s very helpful to come and bring in the actual what is owed as of that morning.
We went for the rent that was past due for January, but it’s already February, so we had to add in all of that.
It’s also very important if there’s a counterclaim to have proof of what they’re complaining about, and how have you fixed it.
Let’s say someone’s complaining about a leaky faucet or a leaky pipe, show how you went in, how you fixed it, photographs, anything that can back their claims.
Matthew: Yeah, like, even communication, like, printed emails or printed text messages, yeah.
The power of documents is incredible in court, because, even if you don’t have a property manager or an attorney.
Just it backs up what you’re saying, because then it makes it not a he said, she said, but look, I actually said this, and you can actually point to a piece of paper.
Matthew: Right. All Right.
Monica: Absolutely. The judge will either say, you know, “Go out in the hall. Talk to Mr. Whitaker. Talk to Ms. Gilroy,” or sometimes they have what are called mediators who are just neutral third parties.
Mediation is very common, especially in Fulton County, where you’re forced, not forced.
But mandated to go mediate before you go into the courtroom.
Mediation is not binding, which means that if you don’t like the terms, you can get up and you have a right to a hearing.
But many people resolve their problems during mediation, which is wonderful.
And attorneys also can, my experience, can help with that, too.
Because, when you have two people that are in conflict, somebody that’s a little more objective.
Now, I know that you would represent me, but you’re also more objective. I’m mad because so and so is not paying.
They’re mad because they feel like we’ve done them wrong.
And sometimes an objective third party can come in and kind of bring the two parties together and make it go away.
Monica: That’s completely right, Matthew.
Again, a story from just recently, although initially, the tenant was a little hostile towards what I was trying to say to her, she realized over time that what I was saying was accurate.
She kept saying, “I’m entitled to an attorney,” and I said, “No, you’re not. This isn’t a criminal action. This is just a civil action.”
But you learn sometimes that it is helpful to have a property manager or a lawyer kind of sit and just to listen.
Because oftentimes, a tenant that didn’t try to get into this situation where they’re behind, has a story that honestly can be worked out.
The situation I’m thinking of, we ended up getting almost $4,500 in cash at the table of about $5,000 that was owed.
And I have a judgment against this person for about two times as much leading up to the time she’s getting out of the property.
So, I negotiated something that was better than what the court could have possibly have given me.
Monica: Yes. And that’s what’s wonderful about our court system in Georgia is we have forms for pretty much every situation.
That’s another big plus of getting it worked out is that you can make it a judgment of the court.
And if you all agree to it, then the tenant cannot appeal it, meaning they can’t change their minds when they go home later and, you know, talk to their spouse or their friends or their dad and decide, “Uh oh, I got a raw deal.”
Because, when you do go to a trial, when you actually have to have a hearing, and the judge says, you know, “You win Mr. Landlord,” the tenant only has 7 days in which to appeal that, and oftentimes tenants will do that.
But then you as the landlord without the benefit of a property management company or an attorney, find yourself scrambling.
The law does say that the tenant, if they go to the trial, has to pay to stay, meaning that if they want to sustain their appeal.
They have to pay what’s owed into the courts registry, but oftentimes they don’t do that.
Matthew: So, let me repeat what I heard.
So, let’s say we can’t work it out in the hallway, we come in, we have the trial, and we either win or lose. Let’s pretend we win in this case.
Monica: That’s right.
Matthew: But to appeal it, they’ve got to pay into the court, basically, what they would have lost, right?
Monica: That’s right.
And like, let’s say, let’s take Fulton County city of Atlanta, for example, right?
Let’s say they were $1,500 behind, right? So, they file their appeal. And they lose today.
So, they have to pay, within that 7 days, that $1,500 that they were ordered to pay, and then, let’s say their rent is $1,500 every month.
Thereafter, if the appeal takes, because sometimes it can take this long, 5 months, 6 months, they have to pay every single month into that court’s registry.
And if they don’t, their appeal is dismissed, and that writ of possession or that right to move forward with the eviction commences.
So basically, you win and can move forward as the landlord-owner.
Matthew: Very nice.
And the whole thing, and you mentioned this earlier, but just to reiterate, the whole goal is, number one, to get them out.
And if they leave on their own, at any step in this process they could leave and that does happen.
But the whole goal, if they’re staying and kind of fighting it to the last minute, is, to get what’s called a writ of possession.
Monica: It is, yeah. I mean, the thing that’s kind of unique about eviction processes is that even, if you win, even if you go in court and the court says, “Okay, I’m going to give you your writ of possession.”
The sheriff of that county has to come and actually execute the writ, not like shoot it execute it, but formally hand it over.
So, that’s why the sheriff, you have to arrange with the sheriff for him to come out and actually be on the property.
And he will have this piece of paper in hand called the writ, or in other words, your right to possess, and he will say, “I’m executing this writ.”
And at that point, the eviction process has, basically, that’s it, that’s the end of it, moving to the next stage, which is the move-out.
Matthew: All right.
So, that doesn’t mean we’ve gotten them out of the house yet, they could still…
They’ve just lost their right to the house in the court.
Monica: That’s right.
Monica: Sure. I think it’s very fair, especially in Metro Atlanta, to have an expectation that even if you win in court one day, a writ could still take up to sometimes 7 to 10 days to issue.
So, all the while, the tenant could be sitting in there.
So, it’s very important to go and be checking on the property, being sure they’re not doing anything that could damage the property.
But let’s say you get your actual writ in 10 days, you are going to have to call the sheriff’s department and coordinate them in what’s called the set-out crew.
Takes all the stuff that’s out of the house, if there is any left, and moves it to the kerb.
It is very appropriate, in my opinion, to move it to the kerb. Some people get to trash things and throw them out.
I wouldn’t do that.
I just moved to the kerb, unless there’s some prohibition within the neighborhood or something like that.
That, again, just takes coordination on the part of the owner-landlord, another benefit, of course, to having a property Management Company is they take that part all over for you.
Usually, as the attorney, we work in concert with the property managers to help get that done.
Matthew: So, it could be as long as, you know, two weeks from the time the writ, and then it takes sometimes as long as a week to even get the writ executed?
Monica: Yeah, yeah.
Matthew: So, then we’re talking about potentially 3 weeks plus post us winning this lawsuit?
Monica: That’s exactly right.
And then forget about it when it comes to Christmas time, New Year’s, many counties just enter their own what they call moratoriums, meaning they freeze.
They don’t want to do this during the holiday season.
Now, there’s a lot of options in terms of set out crews, many of which work closely with lawyers, property managers, and the sheriff as well.
And usually the sheriff can work in concert with them to get people there as quickly as possible to do what they need to do.
Matthew: And you mentioned one thing that I think it’s important too, is, to make sure you’re taking pictures or videotaping this move out process.
Monica: Yeah. Yeah, absolutely. It is critical.
Again, like we talked about the documentation when we go to court if someone’s complaining about there’s a problem with the house.
Even the documentation of the rent they didn’t pay and what is owed, the eviction process is one that leads to numerous lawsuits.
People will claim that they were wrongfully evicted, or that there was damage to their property.
Again, a case I had many years ago, purportedly this lady left an antique box of jewelry hidden away in the back part of her pantry.
Nobody knew about it but, of course, when the move out crew came to, you know, put all of her stuff out, well, of course, magically that was gone.
And, you know, even though she can’t really prove other than pictures that she had it, huge lawsuit, everyone gets involved, very expensive.
Good for me as the lawyer, but not so good for those that have to defend it.
Videotape and pictures showing how you’re moving them out, what you’re seeing, what was left on the kerb, very, very effective to keep your liability down.
Matthew: Awesome. Well, you have done a great job of kinda walking the layman through the process of the eviction.
Monica, thank you so much.
If someone wanted to get in touch with you, how would they do that?
Monica: Well, I want to thank you, Matthew, for the opportunity.
We serve the entire state of Georgia and it’s always our pleasure to be of assistance.
And if somebody has more questions and wants to contact us at gkhouses.
We have a property management company that we have here in Atlanta, and just want to…
Would be happy to answer any questions you have about the eviction process, about managing homes.
We’re happy to help any way we can, too. So, thank you so much, and thanks so much for joining us, Monica.
Monica: Thanks, Matthew.