Evicting a tenant from your property is a stressful, time-consuming and often messy process almost all landlords will eventually have to face. Whether it’s due to delinquent or unpaid rent, lease violations, criminal activity or some other issue, there is no shortcut or instant fix when a tenant fails to uphold their end of the bargain.
Watching a property you’ve invested significant resources in only to see it fail to produce revenue can be a frustrating and pressure-packed scenario, particularly for landlords who are new to the property management business. But these emotions and the “need for speed” often spark unforced errors far more costly than what may have been initially lost during the default period. And attempting a DIY approach without qualified legal counsel will almost always compound those mistakes.
After many years of representing clients in a variety of eviction proceedings, there are a few common pitfalls I’ve seen that routinely trip up landlords. If you want to avoid those same mistakes, make sure to brush up on the below points:
- Improper Notice: The law in Georgia is quite clear – landlords must provide proper statutory notice before initiating an eviction action. Failure to comply with this requirement can result in a judge tossing your case, no matter the delinquency of your tenant. The notice should clearly state the reason for any pending eviction, total amount of back rent owed and how long a tenant has to cure the issue(s) before formal legal proceedings begin.
Another overlooked aspect of proper legal notice is formal service. Whereas most residential tenants can be served at the same address where they live, landlords will need to serve the registered agent for corporate tenants. The local sheriff’s office can handle service for the majority of these cases, but you may need to enlist the help of a private processor for cases involving multiple different addresses. - Insufficient Documentation of Violations: It is vital your documentation is correct and proves what you think it proves. In addition to the formal lease agreement, you should be able to produce records of rent payments, lease violations, late notices, and other communications establishing a clear paper trail of misconduct by the tenant. Good recordkeeping is essential, and documentation should be clear and easy for the court to review. A tenant will always have the advantage when their landlord has missing or incomplete records.
That said, many pro se litigants will sometimes show up to court with a stack of paperwork to throw on the judge’s desk without any understanding of what is relevant or even admissible. The judge will not make that determination for them. If they haven’t taken the time to properly vet and authenticate these documents beforehand, it’s going to be an uphill battle to draw a clear line of connection between what is alleged and what can actually be proven. Less is often more in this scenario. Broad or unclear lease terms can also be challenging for landlords who choose to represent themselves as they lack the experience and know-how to effectively argue and drill down on certain provisions that may be unclear and open to interpretation. - Accepting Partial Payments: This is a huge no-no that has sunk many a landlord’s case, even if all the other evidence lies in their favor. Accepting partial payments from tenants after filing an eviction action can lead to issues of accord and satisfaction, potentially resulting in the dismissal of the case. The conduct of a plaintiff both pre- and post-filing opens up the possibility of the court invalidating provisions of the lease by conduct, so it’s important for litigants to understand how their actions affect the case as it is ongoing. These types of issues are generally found in case law, not statutes, which can make navigating them difficult for non-attorneys.
Many landlords have an inclination to accept partial payments with the reasoning that some money is better than none at all. But this can come back to haunt you. There have even been instances where a landlord prevailed in court, but a few weeks later on eviction day, the sheriff’s office canceled the eviction notice since their involvement requires a certification that no payments have been accepted. - Filing in the Wrong Court Venue: For most eviction matters, magistrate court will be the best venue for filing. It’s cheaper to bring your case, and because it’s predominantly form-based, 99 times out of 100 it will be faster than state or superior court.
The one downside for going this route is all magistrate decisions are automatically appealable to the state or superior Court, which can essentially wipe out and reset your case after obtaining a favorable judgment. In some cases, filing directly in state or superior Court may help reach a final resolution more quickly. Doing your homework here could save you countless hours and dollars. - Representing Yourself in Magistrate Court: Georgia law enables landlords and corporations to represent themselves in magistrate court. But just because you can doesn’t mean you should, as many pro se litigants (who are often business owners or accomplished real estate professionals themselves) fall victim to overconfidence and a failure to properly navigate the procedural requirements unique to magistrate court. Flying solo without an attorney leaves you vulnerable and exposed to all kinds of legal landmines bringing your case to a screeching halt. For an attorney, the most difficult cases are often those that begin with a self-represented litigant who turns to a lawyer after getting in over their head. For the litigant, these can be the most costly because the attorney might have to correct issues arising prior to their involvement.
As you may guess, the common denominator with all five mistakes is they are typically made by parties attempting to handle eviction matters without legal representation. For that reason, it’s imperative to invest in an experienced real estate attorney who understands the do’s and don’ts of the eviction process. They will ensure you are in full compliance with local laws and can keep your case from going off the rails.
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