When Declaring a Default Isn’t Enough: The Importance of a Demand for Possession

Your tenant hasn’t paid rent in months. You’ve sent multiple letters advising the tenant of its default and demanding payment in full, all to no avail. Fed up, you decide it’s time to file an eviction action.

Not so fast. At least under Georgia law, declaring your delinquent tenant to be in default, standing alone, is insufficient. Rather, by statute, before filing a dispossessory case, a Georgia landlord must also demand that the tenant surrender possession of the leased premises. Indeed, in this state, a prior demand for possession is an absolute prerequisite to a successful eviction action.

Bolster Your Position With a Written Demand

Words matter. Your lease may define an event of default as including the tenant’s failure to pay rent when due or, alternatively, within a certain number of days following written notice from the landlord. But unless you have actually demanded possession of the premises — as opposed to simply demanding payment of the past due amount — your case is on shaky ground. Thus, in addition to demanding payment, it is critical that a landlord also demand that the tenant vacate the premises if it fails to cure its default.

In Georgia, a landlord need not make its demand for possession in writing; it may do so orally. But, for obvious reasons, a written demand is preferable. That way, the landlord will be able to show the judge that it demanded possession, rather than having to settle for simply telling the court that it did so. A written demand for possession will eliminate the classic “he said, she said” swearing contest that may give a sympathetic judge a basis to deny an order of eviction.

Consider the Timing of the Demand

Additionally, the timing of the demand for possession is important. In Georgia, the two primary bases for commencing an eviction action are (1) the tenant’s failure to pay rent; and (2) the tenant’s refusal to vacate the premises following the expiration or earlier termination of the lease. This distinction will dictate the timing of the demand for possession.

If the landlord wants to evict the tenant for failing to pay rent, it may send a default letter that both demands payment and demands possession if the tenant fails to cure its default. However, if the landlord seeks to evict the tenant due to a non-monetary default — including for the failure to surrender possession after the lease expires or terminates — then the landlord must wait until after the lease expires or terminates before sending the demand for possession. This quirk of Georgia law becomes even more significant if the landlord terminates the lease due to the tenant’s failure to pay rent. Moreover — and as will be discussed in a later article — whether to terminate a lease due to a monetary default requires strategic analysis. As a good rule of thumb, however, if the landlord wants to terminate the lease due to non-payment, the better practice is to first comply with any notice and cure provisions in the lease; then send a termination notice including a demand for possession following the tenant’s failure to cure.

From the Tenant’s Perspective

When faced with a pending eviction action, a tenant may consider whether the landlord made a written demand for possession before filing suit. If the landlord failed to do so — or if the landlord allegedly made only an oral demand for possession — the tenant could raise this failure as a defense in its answer. This defect is most common in residential eviction actions in which landlords who may be unfamiliar with Georgia law file pro se eviction actions in magistrate court. In this situation, although the landlord may dismiss its defective dispossessory warrant, send a proper demand for possession, and re-file the case, the timing of this process may still provide the tenant with the additional time needed to relocate.

Failure to Demand Possession Can Be Fatal

When it comes to eviction cases, many judges will look for any excuse to find in a tenant’s favor, especially in sympathetic cases involving residential leases. A landlord’s failure to properly demand possession before filing the dispossessory case is a fatal — but entirely preventable — defect. Before filing the eviction paperwork, landlords should ensure they have complied with this mandatory requirement.