For property owners in Georgia, the presence of a completely unauthorized person occupying a property presents a potentially difficult and expensive legal problem. How does an owner go about ejecting an intruding squatter legally and efficiently?
Squatters are intruders whose occupancy and possession of property is completely unauthorized. Their occupancy is not associated with a lease or other legal instrument allowing for possession or showing ownership, and their occupancy did not originate lawfully, as is the case with a former owner following foreclosure or with a tenant following termination or expiration of a lease.
Squatters represent a special case for a property owner. As an unlawful intruder with no right to be in the property, squatters are trespassers and theoretically subject to arrest and removal by law enforcement. However, if a squatter does not appear transient and instead is living in a property with furniture and personal effects, then law enforcement will likely refuse to remove the squatter. Law enforcement will often advise the owner that they need to go through the civil dispossessory process, particularly if the squatter falsely claims that they are paying rent to live in the property or produces a phony lease.
Consequently, owners dealing with squatters often proceed by commencing traditional dispossessory proceedings just as a landlord would do when evicting a tenant who failed to pay rent. However, it is well established that the existence of a landlord-tenant relationship is a condition precedent for commencing a dispossessory action under O.C.G.A. § 44-7-49 et seq. At least theoretically, the lack of a landlord-tenant relationship between an owner and a squatter could be a valid defense to a dispossessory action and lead to its dismissal.
Moreover, the court systems in most metro-Atlanta counties are currently struggling to handle their eviction caseloads in a timely fashion. It can take nine months or more from the commencement of a dispossessory proceeding until the tenant is physically evicted and removed. Finally, there is a significant amount of information on contesting evictions available on the internet. It is relatively easy for a squatter to gain information on dispossessory procedures and potential delay tactics involving appeals, bankruptcies, and federal lawsuits. This can lead to a nightmare scenario for a property owner, where a tricky squatter engages in repeated delaying actions in order to remain in the property while a traditional dispossessory proceeding drags on in the courts for months and even years.
The successful delay tactics of squatters are particularly frustrating considering that they have no right to lawfully occupy the property. If law enforcement refuses to remove squatters because they consider them tenants, but the protections afforded tenants under Georgia’s dispossessory laws are supposed to be inapplicable to squatters, how does an owner proceed in lawfully removing a squatter from their property? The answer may lie in a old statute enacted specifically to address intruders and squatters.
O.C.G.A. § 44-11-30 provides that where an owner executes an affidavit setting forth that they own the property and that the property is in the possession of an intruder or squatter who refuses to turn it over, and the affidavit is provided to the sheriff of the county where the property is located, then the sheriff shall “exhibit such affidavit” to the intruder or squatter and immediately “turn such person out of possession unless the person in possession tenders to the sheriff a counteraffidavit” setting forth a good faith, legal right for the squatter to possess the property.
O.C.G.A. § 44-11-30 is part of an old Georgia law dating back to the 1850’s. Its procedure and methodology reflect a different era, but if utilized carefully, it can be a very effective tool for an owner dealing with a squatter. Unlike in a traditional dispossessory action, the sheriff must immediately remove a squatter from a property under O.C.G.A. § 44-11-30 unless the squatter shows a counteraffidavit. This potentially provides for a process that is dramatically faster and more efficient than the traditional dispossessory action. Moreover, compared to traditional dispossessory procedures, the procedures for evicting a squatter under O.C.G.A. § 44-11-30 are not very well-known, even among attorneys. There is a fair likelihood that a squatter may receive an owner’s affidavit from the sheriff and be absolutely baffled by what it is, what it means, and how to respond. More specifically, the squatter may not know how to contest the owner’s affidavit or delay its impact. For an owner dealing with a squatter who might otherwise know all the methods for delaying a traditional dispossessory proceeding, this can be a very good thing.
O.C.G.A. § 44-11-30 is so uncommon that many employees of sheriff’s offices do not know exactly how to handle it. As a result, various metro-Atlanta counties currently handle proceedings under the statute in different ways. For example, in one metro-Atlanta county, the sheriff’s office will simply accept the owner’s affidavit with a fee and arrange for a date for the affidavit to be served on the squatter. In a different metro-Atlanta county, the sheriff’s office requires that the owner’s affidavit or a pleading of some sort first be filed in Superior Court so that a civil action file number is assigned to the matter.
In recent months Williams Teusink, LLC has seen a significant increase in owners dealing with squatters occupying their properties. Our firm has worked with the sheriff’s offices of several metro-Atlanta counties to determine what they require to proceed with presenting an affidavit to a squatter under O.C.G.A. § 44-11-30 and immediately remove the squatter from the property if necessary.
If you are dealing with a squatter who has intruded into your property and you are not sure of how to proceed in getting them removed, contact the attorneys at Williams Teusink, LLC so we can discuss whether O.C.G.A. § 44-11-30 is a good option for you.
