Georgia Tenants have Little Protection in Foreclosure

As of January 1, 2015 residential tenants in Georgia have little protection when their landlord defaults on the mortgage. The federal Protecting Tenants at Foreclosure Act (PTFA), which offered important protections to tenants in residential property subject to foreclosure, expired at the end of 2014.

The PTFA was enacted by Congress in 2009 as a response to the financial and mortgage crisis. With the expiration of this federal law, the rules governing eviction (known as a ” dispossessory” action in Georgia courts), revert to those provided under Georgia State law.

The dispossessory process in Georgia is an expedited procedure. Once served with a summons, the tenant has only seven days to respond. If the tenant misses the deadline for filing an answer, the landlord can get a Writ of Possession and have the sheriff evict the tenant within only three more days.

According to Georgia law, after a foreclosure sale, the new owner is not bound by the prior landlord’s lease and can immediately send a demand for possession to the tenant. Such a tenant is essentially treated as a trespasser. The new owner can institute dispossessory proceedings immediately after making the demand.

If you have reason to believe your landlord is in  default, or if you’ve been served with a summons, you should contact a qualified Georgia landlord-tenant attorney immediately. Unfortunately, it can be  difficult for a tenant to know the state of the landlord’s finances.

So what can be done for such tenants? While Georgia law does provide an expedited process, landlords must assure that they follow the rules to the letter. A tenant can challenge a dispossessory action if the landlord did not make a proper demand for possession. Prudent landlords will always send the demand by certified letter with return receipt requested.

Landlords must also be careful not to take any action that would constitute an illegal eviction. Changing the locks, cutting off utilities or otherwise attempting to evict the tenant by “self-help” can expose a landlord to punitive damages for trespass, illegal eviction, or conversion.

While residential landlords are forbidden from engaging in such self-help tactics, there is no such rule in the commercial landlord-tenant context, as long as there is a lease provision allowing the landlord to bypass the judicial process. Even so, a commercial landlord must be careful in resorting to self-help if there is any danger of a breach of the peace. Such confrontations could result in other claims, such as for assault or battery.

For assistance with your residential or commercial landlord-tenant matters, contact LaRose Law Georgia today.