Can a Security Deposit Be Reatained By Landlord in Georgia?
Full Question:
We leased our house out in 2001. The lease stated if rent was not paid by the 5th it would incur a 10% late fee. Our tenant paid the first and last months rent as well as a deposit. He paid the rent after the 5th on many occasions, but never paid the late fees. We informed him of this in several letters. In addition, he removed all the shrubbery around the house because they were afraid of snakes and left an iron imprint and other damaged places on the carpet. He never paid the last months rent or the 6 days in May he was there. The amount he owes for late charges far exceeds the deposit or the last months rent. Am I entitled to get reimbursed for what he owes?
07/09/2009 |
Category: Landlord Ten... ยป Lease Termin... |
State: Georgia |
#17405
Answer:
Within a month after the termination of the tenancy, a landlord in Georgia must deliver an itemized list of deductions from a security deposit. The statutes allow the landlord to retain
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. In some cases, an escrow account or bond must be established first.
It is possible that the tenant may use waiver by acceptance of partial rent late as a defense to late charges. If rent was accepted late, the letters may be used as evidence that late charges weren't waived.
The following are GA statutes:
44-7-31. Except as provided in Code Section 44-7-32, whenever a
security....
Except as provided in Code Section 44-7-32, whenever a security
deposit is held by a landlord or such landlord's agent on behalf of a
tenant, such security deposit shall be deposited in an escrow account
established only for that purpose in any bank or lending institution
subject to regulation by this state or any agency of the United States
government. The security deposit shall be held in trust for the tenant
by the landlord or such landlord's agent except as provided in Code
Section 44-7-34. Tenants shall be informed in writing of the location
of the escrow account required by this Code section.
44-7-32. (a) As an alternative to the requirement that security deposits
be....
(a) As an alternative to the requirement that security deposits be
placed in escrow as provided in Code Section 44-7-31, the landlord may
post and maintain an effective surety bond with the clerk of the superior
court in the county in which the dwelling unit is located. The amount of
the bond shall be the total amount of the security deposits which the
landlord holds on behalf of the tenants or $50,000.00, whichever is
less. The bond shall be executed by the landlord as principal and a
surety company authorized and licensed to do business in this state as
surety. The bond shall be conditioned upon the faithful compliance of the
landlord with Code Section 44-7-34 and the return of the security
deposits in the event of the bankruptcy of the landlord or foreclosure of
the premises and shall run to the benefit of any tenant injured by the
landlord's violation of Code Section 44-7-34.
(b) The surety may withdraw from the bond by giving 30 days' written
notice by registered or certified mail or statutory overnight delivery to
the clerk of the superior court in the county in which the principal's
dwelling unit is located, provided that such withdrawal shall not release
the surety from any liability existing under the bond at the time of the
effective date of the withdrawal.
(c) The clerk of the superior court shall receive a fee of $5.00 for
filing and recording the surety bond and shall also receive a fee of
$5.00 for canceling the surety bond. The clerk of the superior court
shall not be held personally liable should the surety bond prove to be
invalid.
44-7-33. (a) Prior to tendering a security deposit, the tenant shall be....
(a) Prior to tendering a security deposit, the tenant shall be
presented with a comprehensive list of any existing damage to the
premises, which list shall be for the tenant's permanent retention. The
tenant shall have the right to inspect the premises to ascertain the
accuracy of the list prior to taking occupancy. The landlord and the
tenant shall sign the list and this shall be conclusive evidence of the
accuracy of the list but shall not be conclusive as to latent defects. If
the tenant refuses to sign the list, the tenant shall state specifically
in writing the items on the list to which he dissents and shall sign such
statement of dissent.
(b) Within three business days after the date of the termination of
occupancy, the landlord or his agent shall inspect the premises and
compile a comprehensive list of any damage done to the premises which is
the basis for any charge against the security deposit and the estimated
dollar value of such damage. The tenant shall have the right to inspect
the premises within five business days after the termination of the
occupancy in order to ascertain the accuracy of the list. The landlord
and the tenant shall sign the list, and this shall be conclusive evidence
of the accuracy of the list. If the tenant refuses to sign the list, he
shall state specifically in writing the items on the list to which he
dissents and shall sign such statement of dissent. If the tenant
terminates occupancy without notifying the landlord, the landlord may
make a final inspection within a reasonable time after discovering the
termination of occupancy.
(c) A tenant who disputes the accuracy of the final damage list given
pursuant to subsection (b) of this Code section may bring an action in any
court of competent jurisdiction in this state to recover the portion of
the security deposit which the tenant believes to be wrongfully withheld
for damages to the premises. The tenant's claims shall be limited to
those items to which the tenant specifically dissented in accordance with
this Code section. If the tenant fails to sign a list or to dissent
specifically in accordance with this Code section, the tenant shall not be
entitled to recover the security deposit or any other damages under Code
Section 44-7-35, provided that the lists required under this Code section
contain written notice of the tenant's duty to sign or to dissent to the
list.
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.
44-7-35. (a) A landlord shall not be entitled to retain any portion of
a....
(a) A landlord shall not be entitled to retain any portion of a
security deposit if the security deposit was not deposited in an
escrow account in accordance with Code Section 44-7-31 or a surety
bond was not posted in accordance with Code Section 44-7-32 and if
the initial and final damage lists required by Code Section 44-7-33
are not made and provided to the tenant.
(b) The failure of a landlord to provide each of the written statements
within the time periods specified in Code Sections 44-7-33 and 44-7-34
shall work a forfeiture of all his rights to withhold any portion of the
security deposit or to bring an action against the tenant for damages to
the premises.
(c) Any landlord who fails to return any part of a security deposit
which is required to be returned to a tenant pursuant to this article
shall be liable to the tenant in the amount of three times the sum
improperly withheld plus reasonable attorney's fees; provided, however,
that the landlord shall be liable only for the sum erroneously withheld
if the landlord shows by the preponderance of the evidence that the
withholding was not intentional and resulted from a bona fide error which
occurred in spite of the existence of procedures reasonably designed to
avoid such errors.
44-7-36. Code Sections 44-7-31, 44-7-32, 44-7-33, and 44-7-35 shall not
apply....
Code Sections 44-7-31, 44-7-32, 44-7-33, and 44-7-35 shall not apply to
rental units which are owned by a natural person if such natural person,
his or her spouse, and his or her minor children collectively own ten or
fewer rental units; provided, however, that this exemption does not apply
to units for which management, including rent collection, is performed by
third persons, natural or otherwise, for a fee.
