What can landlord do to collect back rent from someone who does not have it?

12/12/2008 - Landlord Tenant - State: GA #14792

Full Question:

My niece, single, pregnant, and has 1 child could not pay her rent, she was 3 months behind and has vacated the property. She tried to work with landlord to have her friends do repair work on his rental properties; however, landlord would not work anything with her. She cleaned the apartment when she moved out. He is wanting back rent from her and she just does not have it. I told her to tell him she can't pay and she doesn't have anything - no car - no possessions. What can he do?

Answer:

The relationship of landlord and tenant is created by contract, and the terms of the contract (lease) generally determine the rights of the landlord and tenant. Your niece should carefully review the terms of her lease agreement to determine her obligations (and her landlord's rights) regarding payment of rent and abandonment of the property. Please see the information at the following links regarding Georgia's landlord/tenant hotline at http://consumer.georgia.gov/00/article/0,2086,5426814_5684686_39004304,00.html and the Georgia Department of Community Affairs Landlord Tenant handbook at http://www.dca.state.ga.us/housing/HousingDevelopment/programs/downloads/landlord/contents.html.

Under most rental agreements and leases, the tenant agrees to pay a specified amount of rent on a certain date. Failure of the tenant to comply with such provisions amounts to a breach of the lease. Consequently, the landlord is not required to accept a portion of the rent unless the landlord has established a pattern and practice of doing so. If the landlord has accepted partial payments in the past, he can not refuse partial payments without first giving notice that he will only accept full payment. If a tenant breaches the lease agreement, the landlord must serve written notice of the breach upon the tenant, describing specifically what constitutes the breach, and in many cases, stating a deadline by which the tenant must remedy the breach or be terminated. The period of notice prior to the deadline is defined by statute and varies in length depending on the severity abd type of breach. If the breach is non-payment of rent, a period from three days to two weeks is typically allowed for repayment.

Abandonment is typically defined as absence of the tenant from the premises for a period of time when rent has not been paid. Provided the statutory definition is met, a landlord is allowed to reposses the premises and store tenant's belongings. A tenant may recover same before the expiration of a certain time period, but must reimburse landlord for the cost of storage.

The following are Georgia statutes:

44-7-16. All contracts for rent shall bear interest from the time the rent is....

All contracts for rent shall bear interest from the time the rent is due.

44-7-34. (a) Except as otherwise provided in this article, within one month....

(a) Except as otherwise provided in this article, within one month after the termination of the residential lease or the surrender and acceptance of the premises, whichever occurs last, a landlord shall return to the tenant the full security deposit which was deposited with the landlord by the tenant. No security deposit shall be retained to cover ordinary wear and tear which occurred as a result of the use of the premises for the purposes for which the premises were intended, provided that there was no negligence, carelessness, accident, or abuse of the premises by the tenant or members of his household or their invitees or guests. In the event that actual cause exists for retaining any portion of the security deposit, the landlord shall provide the tenant with a written statement listing the exact reasons for the retention thereof. If the reason for retention is based on damages to the premises, such damages shall be listed as provided in Code Section 44-7-33. When the statement is delivered, it shall be accompanied by a payment of the difference between any sum deposited and the amount retained. The landlord shall be deemed to have complied with this Code section by mailing the statement and any payment required to the last known address of the tenant via first class mail. If the letter containing the payment is returned to the landlord undelivered and if the landlord is unable to locate the tenant after reasonable effort, the payment shall become the property of the landlord 90 days after the date the payment was mailed. Nothing in this Code section shall preclude the landlord from retaining the security deposit for nonpayment of rent or of fees for late payment, for abandonment of the premises, for nonpayment of utility charges, for repair work or cleaning contracted for by the tenant with third parties, for unpaid pet fees, or for actual damages caused by the tenant's breach, provided the landlord attempts to mitigate the actual damages.
(b) In any court action in which there is a determination that neither the landlord nor the tenant is entitled to all or a portion of a security deposit under this article, the judge or the jury, as the case may be, shall determine what would be an equitable disposition of the security deposit; and the judge shall order the security deposit paid in accordance with such disposition.

44-7-70. The landlord shall have power to distrain for rent as soon as the....

The landlord shall have power to distrain for rent as soon as the same is due if the tenant is seeking to remove his property from the premises

44-7-71. When rent is due or the tenant is seeking to remove his property, the....

When rent is due or the tenant is seeking to remove his property, the landlord, his agent, his attorney in fact, or his attorney at law may, upon a statement of the facts under oath, apply for a distress warrant before the judge of the superior court, the state court, the civil court, or the magistrate court within the county where the tenant may reside or where his property may be found.

44-7-72. When the affidavit provided for in Code Section 44-7-71 is made, the....

When the affidavit provided for in Code Section 44-7-71 is made, the judge of the superior court, the state court, the civil court, or the magistrate court before whom it was made shall grant and issue a summons to the marshal or the sheriff or his deputy of the county where the tenant resides or where his property may be found. A copy of the summons and the affidavit shall be personally served upon the defendant. If an officer is unable to serve the defendant personally, service may be given by delivering the summons and affidavit to any person who is sui juris residing on the premises. The summons served on the defendant pursuant to this Code section shall command and require the tenant to appear at a hearing on a day certain not less than five nor more than seven days from the date of actual service.

44-7-73. In an action for nonpayment of rent, the tenant shall be allowed to....

In an action for nonpayment of rent, the tenant shall be allowed to tender to the landlord, within seven days of the day the tenant was served with the summons pursuant to Code Section 44-7-72, all rents allegedly owed plus the cost of the distress warrant. Such a tender shall be a complete defense to the action.

44-7-74. (a) At or before the time of the hearing, the defendant may answer in....

(a) At or before the time of the hearing, the defendant may answer in writing. The defendant may answer orally at the time of the hearing. If the answer is oral, the substance thereof shall be endorsed upon the affidavit. The answer may contain any legal or equitable defense or counterclaim.
(b) If the tenant fails to answer, the court shall grant a distress warrant; and the plaintiff shall be entitled to a verdict and judgment by default for all rents due as if every item and paragraph of the affidavit provided for in Code Section 44-7-71 were supported by proper evidence, which verdict shall be in open court or chambers and without the intervention of a jury.
(c) If the tenant answers, a trial of the issues shall be had in accordance with the procedure prescribed for civil actions in courts of record except that if the action is tried in the magistrate court the trial shall be had in accordance with the procedures prescribed for that court. Every effort shall be made by the trial court to expedite a trial of the issues. The defendant shall be allowed to remain in possession of the premises and his property pending the final outcome of the litigation, provided that he complies with Code Section 44-7-75.

44-7-75. (a) At the time the tenant answers, the tenant shall pay into the....

(a) At the time the tenant answers, the tenant shall pay into the registry of the trial court all rent admittedly owed prior to the issuance of the summons; provided, however, that, in lieu of such payment, the tenant shall be allowed to submit to the court a receipt indicating that the payment has been made to the landlord. In the event that the amount of rent is in controversy, the court shall determine the amount of rent to be paid into court in the same manner as provided in subsection (b) of this Code section.
(b) The tenant shall pay into the registry of the trial court all rent which becomes due after the issuance of the summons and shall pay said rent as it becomes due. If the landlord and tenant disagree as to the amount of rent, either or both of them may submit to the court any written rental contract for the purpose of establishing the amount of the rent to be paid into the registry of the court. If the amount of rent is in controversy and no written rental agreement exists between the tenant and the landlord, the court shall require the amount of rent to be a sum equal to the last previous rental payment made by the tenant and accepted by the landlord without written objection.
(c) If the landlord is also seeking a dispossessory warrant against the tenant pursuant to Article 3 of this chapter, money paid into court under Code Section 44-7-54 shall fully satisfy the requirements under subsections (a) and (b) of this Code section.
(d) After the date of the service of the summons as provided in Code Section 44-7-72, the tenant shall not transfer, convey, remove, or conceal his property without either posting bond as provided in Code Section 44-7-76 or complying with subsections (a) and (b) of this Code section.
(e) If the tenant shall fail to comply with any of the provisions of this Code section, the tenant shall not be entitled to retain possession of his property pending a trial on the merits as provided by Code Section 44-7-74 unless he posts bond as provided by Code Section 44-7-76. Failure to comply with any provision of this Code section shall in no way affect the tenant's ability to litigate the issues raised in his answer but shall only affect the possession of the property pendente lite. If judgment is against the tenant, the property involved shall be seized by the marshal, the sheriff, or the deputy, as the case may be, and held thereby for levy and sale after judgment as provided by Code Section 44-7-79.
(f) The court shall order the clerk of the court to pay to the landlord the amounts paid into the registry of the court as such payments are made; provided, however, that, if the tenant claims that he is entitled to all or a part of the funds and such claim is an issue of controversy in the litigation, the court shall order the clerk to pay to the landlord without delay only that portion of the funds to which the tenant has made no claim in the proceedings. That part of the funds which is a matter of controversy in the litigation shall remain in the registry of the court until a final determination of the issues.

44-7-76. In all cases where the tenant may desire to transfer, remove, or....

In all cases where the tenant may desire to transfer, remove, or convey any of his property after the service of summons, the tenant shall post bond with good security for a sum equal to the value of the property or the amount of the rent alleged to be due, whichever is less, to be estimated by the judge, for the delivery of the property at the time and place of sale if the property shall be found subject to such rent. Upon the approval of the bond by the judge, the tenant may convey, transfer, or remove his property without restriction.

44-7-77. (a) If, on the trial of the case, the judgment is against the tenant,....

(a) If, on the trial of the case, the judgment is against the tenant, the judgment shall be entered against the tenant for all rent due and for any other claim relating to the dispute and the distress warrant shall be granted.
(b) If the judgment is for the tenant, he shall be entitled to remain in the premises and in possession of his property and the landlord shall be liable for all foreseeable damages shown to have been caused by his wrongful conduct. Any funds remaining in the registry of the court shall be distributed to the parties in accordance with the judgment of the court. If the tenant has been deprived of the possession of his property pendente lite pursuant to subsection (e) of Code Section 44-7-75, the court shall order that the property be returned immediately to the tenant.

The following are Texas statutes:

§ 24.0052 PROP. Tenant Appeal on Pauper's Affidavit

(a) If a tenant in a residential eviction suit is unable to pay the costs of appeal or file an appeal bond as required by the Texas Rules of Civil Procedure, the tenant may appeal the judgment of the justice court by filing with the justice court, not later than the fifth day after the date the judgment is signed, a pauper's affidavit sworn before the clerk of the justice court or a notary public that states that the tenant is unable to pay the costs of appeal or file an appeal bond. The affidavit must contain the following information:
(1) the tenant's identity;
(2) the nature and amount of the tenant's employment income;
(3) the income of the tenant's spouse, if applicable and available to the tenant;
(4) the nature and amount of any governmental entitlement income of the tenant;
(5) all other income of the tenant;
(6) the amount of available cash and funds available in savings or checking accounts of the tenant;
(7) real and personal property owned by the tenant, other than household furnishings, clothes, tools of a trade, or personal effects;
(8) the tenant's debts and monthly expenses; and
(9) the number and age of the tenant's dependents and where those dependents reside.
(b) The justice court shall make available an affidavit form that a person may use to comply with the requirements of Subsection (a).
(c) The justice court shall promptly notify the landlord if a pauper's affidavit is filed by the tenant.
(d) A landlord may contest a pauper's affidavit on or before the fifth day after the date the affidavit is filed. If the landlord contests the affidavit, the justice court shall notify the parties and hold a hearing to determine whether the tenant is unable to pay the costs of appeal or file an appeal bond. The hearing shall be held not later than the fifth day after the date the landlord notifies the court clerk of the landlord's contest. At the hearing, the tenant has the burden to prove by competent evidence, including documents or credible testimony of the tenant or others, that the tenant is unable to pay the costs of appeal or file an appeal bond.
(e) If the justice court approves the pauper's affidavit of a tenant, the tenant is not required to pay the county court filing fee or file an additional affidavit in the county court under Subsection (a).

§ 24.0053 PROP. Payment of Rent During Appeal of Eviction

(a) If the justice court enters judgment for the landlord in a residential eviction case based on nonpayment of rent, the court shall determine the amount of rent to be paid each rental pay period during the pendency of any appeal and shall note that amount in the judgment. If a portion of the rent is payable by a government agency, the court shall determine and note in the judgment the portion of the rent to be paid by the government agency and the portion to be paid by the tenant. The court's determination shall be in accordance with the terms of the rental agreement and applicable laws and regulations. This subsection does not require or prohibit payment of rent into the court registry or directly to the landlord during the pendency of an appeal of an eviction case based on grounds other than nonpayment of rent.
(b) If an eviction case is based on nonpayment of rent and the tenant appeals by filing a pauper's affidavit, the tenant shall pay the rent, as it becomes due, into the justice court or the county court registry, as applicable, during the pendency of the appeal, in accordance with the Texas Rules of Civil Procedure and Subsection (a). If a government agency is responsible for all or a portion of the rent under an agreement with the landlord, the tenant shall pay only that portion of the rent determined by the justice court under Subsection (a) to be paid by the tenant during appeal, subject to either party's right to contest that determination under Subsection (c).
(c) If an eviction case is based on nonpayment of rent and the tenant's rent during the rental agreement term has been paid wholly or partly by a government agency, either party may contest the portion of the rent that the justice court determines must be paid into the county court registry by the tenant under this section. The contest must be filed on or before the fifth day after the date the justice signs the judgment. If a contest is filed, not later than the fifth day after the date the contest is filed the justice court shall notify the parties and hold a hearing to determine the amount owed by the tenant in accordance with the terms of the rental agreement and applicable laws and regulations. After hearing the evidence, the justice court shall determine the portion of the rent that must be paid by the tenant under this section.
(d) If the tenant objects to the justice court's ruling under Subsection (c) on the portion of the rent to be paid by the tenant during appeal, the tenant shall be required to pay only the portion claimed by the tenant to be owed by the tenant until the issue is tried de novo along with the case on the merits in county court. During the pendency of the appeal, either party may file a motion with the county court to reconsider the amount of the rent that must be paid by the tenant into the registry of the court.
(e) If either party files a contest under Subsection (c) and the tenant files a pauper's affidavit that is contested by the landlord under Section 24.0052(d), the justice court shall hold the hearing on both contests at the same time.

§ 24.0054 PROP. Tenant's Failure to Pay Rent During Appeal

(a) During an appeal of an eviction case for nonpayment of rent, if a tenant fails to pay rent into the justice court or county court registry in accordance with the Texas Rules of Civil Procedure and Section 24.0053, the landlord may file with the county court a sworn motion that the tenant failed to pay rent as required. The landlord shall notify the tenant of the motion and the hearing date.
(b) If the county court finds that the tenant has not complied with the payment requirements of the Texas Rules of Civil Procedure and Section 24.0053, the county court shall immediately issue a writ of possession unless on or before the day of the hearing the tenant pays into the court registry:
(1) all rent not paid in accordance with the Texas Rules of Civil Procedure and Section 24.0053; and
(2) the landlord's reasonable attorney's fees, if any, in filing the motion.
(c) If the court finds that a tenant has failed to timely pay the rent into the court registry on more than one occasion:
(1) the tenant is not entitled to stay the issuance of the writ by paying the rent and the landlord's reasonable attorney's fees, if any; and
(2) the county court shall immediately issue a writ of possession.
(d) A writ of possession issued under Subsection (c) may not be executed before the sixth day after the date the writ is issued.
(e) In a motion or hearing in county court under Subsection (a), the parties may represent themselves or be represented by their authorized agents, who need not be attorneys.
(f) During the appeal of an eviction case, if a government agency is responsible for payment of a portion of the rent and does not pay that portion to the landlord or into the justice court or county court registry, the landlord may file a motion with the county court requesting that the tenant be required to pay into the county court registry, as a condition of remaining in possession, the full amount of each rental period's rent, as it becomes due under the rental agreement. After notice and hearing, the court shall grant the motion if the landlord proves by credible evidence that:
(1) a portion of the rent is owed by a government agency;
(2) the portion of the rent owed by the government agency is unpaid;
(3) the landlord did not cause wholly or partly the agency to cease making the payments;
(4) the landlord did not cause wholly or partly the agency to pay the wrong amount; and
(5) the landlord is not able to take reasonable action that will cause the agency to resume making the payments of its portion of the total rent due under the rental agreement.

§ 91.006 PROP. PROP. Landlord's Duty to Mitigate Damages

(a) A landlord has a duty to mitigate damages if a tenant abandons the leased premises in violation of the lease.
(b) A provision of a lease that purports to waive a right or to exempt a landlord from a liability or duty under this section is void.

§ 92.019 PROP. Late Payment of Rent of Rent; Fees

(a) A landlord may not charge a tenant a late fee for failing to pay rent unless:
(1) notice of the fee is included in a written lease;
(2) the fee is a reasonable estimate of uncertain damages to the landlord that are incapable of precise calculation and result from late payment of rent; and
(3) the rent remains unpaid after the second day after the date the rent was originally due.
(b) A late fee under this section may include an initial fee and a daily fee for each day the rent continues to remain unpaid.
(c) A landlord who violates this section is liable to the tenant for an amount equal to the sum of $100, three times the amount of the late fee charged in violation of this section, and the tenant's reasonable attorney's fees.
(d) A provision of a lease that purports to waive a right or exempt a party from a liability or duty under this section is void.
(e) This section relates only to a fee, charge, or other sum of money required to be paid under the lease if rent is not paid as provided by Subsection (a)(3), and does not affect the landlord's right to terminate the lease or take other action permitted by the lease or other law.
Payment of the fee, charge, or other sum of money by a tenant does not waive the right or remedies provided by this section.

§ 92.104 PROP. Retention of Security Deposit; Accounting

(a) Before returning a security deposit, the landlord may deduct from the deposit damages and charges for which the tenant is legally liable under the lease or as a result of breaching the lease.
(b) The landlord may not retain any portion of a security deposit to cover normal wear and tear.
(c) If the landlord retains all or part of a security deposit under this section, the landlord shall give to the tenant the balance of the security deposit, if any, together with a written description and itemized list of all deductions. The landlord is not required to give the tenant a description and itemized list of deductions if:
(1) the tenant owes rent when he surrenders possession of the premises; and
(2) there is no controversy concerning the amount of rent owed.

§ 92.108 PROP. Liability for Withholding Last Month's Rent

(a) The tenant may not withhold payment of any portion of the last month's rent on grounds that the security deposit is security for unpaid rent.
(b) A tenant who violates this section is presumed to have acted in bad faith. A tenant who in bad faith violates this section is liable to the landlord for an amount equal to three times the rent wrongfully withheld and the landlord's reasonable attorney's fees in a suit to recover the rent.


Please see the information at the following links:

http://definitions.uslegal.com/j/judgments/
http://definitions.uslegal.com/j/judgment-liens/
http://definitions.uslegal.com/w/writ-of-execution/
http://definitions.uslegal.com/g/garnishment-of-wages/
http://lawdigest.uslegal.com/consumer-issues/consumer-debt-collection-and-garnishment/7182/
http://lawdigest.uslegal.com/landlord-tenant/summary-of-residential-landlord-tenant-law/5303/
http://www.texastenant.org/fightback/collection/collection.html
http://www.texastenant.org/
http://secure.uslegalforms.com/cgi-bin/forms/query.pl?S-T-B-B-unpaid~rent
http://secure.uslegalforms.com/cgi-bin/forms/query.pl?S-T-B-B-partial~rent

Please see the information at the following links:

http://lawdigest.uslegal.com/landlord-tenant/uniform-residential-landlord-tenant-act/1391/
http://lawdigest.uslegal.com/landlord-tenant/summary-of-residential-landlord-tenant-law/1410/
http://lawdigest.uslegal.com/real-estate-laws/landlord-tenant-rights/7363/
http://lawdigest.uslegal.com/real-estate-laws/leases-and-rental-agreements/7130/
http://www.legalaid-ga.org/GA/StateChannelResults.cfm/County/%20/City/%20/demoMode /%3D%201/Language/1/State/GA/TextOnly/N/ZipCode/%20/LoggedIn/0/iSubTopicID/1/iProblemCodeID/1630100/sTopicImage/ACF31%2Egif/iTopicID/450/bAllState/0/ichannelid/54
http://www.dca.state.ga.us/housing/RentalAssistance/index.asp

12/12/2008 - Category: Landlord Tenant - State: GA #14792

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