Georgia Injury Lawyer Blog

Georgia landlord tenant law is an area that is important to many of our clients. Whether you are a homeowner having to deal with a nightmare tenant who won't pay their bills, or whether you are a tenant having to deal with a nightmare landlord who won't keep your home in repair---it is important to understand your legal rights in either situation.

In today's article we will discuss the notice requirements a landlord must give a tenant prior to eviction:

In Georgia, unless required by the lease, a landlord is generally not required to provide notice prior to filing what is known as a "dispossessory proceeding" which is a fancy term for taking back possession of the property. It is important for both landlords and tenants to carefully check the lease agreement to see what in fact it does say about the notice requirement in order to make sure they comply with the contractual lease agreement to protect themselves from a breach of contract claim.

What is required prior to filing dispossessory proceedings? The landlord needs to "demand possession" of the premises before they can start a dispossessory proceeding. See: O.C.G.A. §44-7-50. This demand for possession does not need to contain any special magic words as long as the landlord clearly demands that he or she wants the tenant to move out and to return the property. Stephens v. Hous. Autho., 293 S.E.2d 53, 53 (Ga. Ct. App. 1982).

If a landlord is trying to get the tenant to leave because he or she has failed to pay the rent, the landlord needs to make sure that the demand for possession of the property is after the due date of the rent but before the beginning of the dispossessory proceeding. If the landlord is seeking to remove the tenant because they are still staying in the house after their lease term has finished (what is known as "holding over), the landlord must give the demand for possession on or after termination of the lease but again, prior to the start of the dispossessory proceedings.

The demand doesn't need to be in writing (it can be written or oral), but it is a good idea for a landlord to do so just in order to cover themselves in court. Same goes for tenants. Anytime a tenant or a landlord encounters any type of problem or dispute concerning rental properties, it is always a good idea to document everything in writing in order to protect yourself later on from the other side lying to the Judge about what really happened. In order to show proof that the other party has actually received your letter, sending the document "certified mail, return receipt" is also preferable.

If you are a landlord with a "problem tenant" or a tenant with a "problem landlord," don't go it alone. Consider getting legal advice prior to taking action to make sure you are in compliance with Georgia law and that your legal rights and interests are protected.

Under Georgia law, can a home buyer sue a seller who is unhappy with the house? Unless the house seller is also the house builder, the answer is "Generally no."

Fortunately for sellers, the law in Georgia protects home owners who sell their house to people who later suffer from "buyers remorse" and want to sue them to rescind the sale. Unfortunately for buyers, unless the seller was also the home builder, there is not much you can do to rescind a sale agreement even if the home seller fraudulently misrepresented or hid a housing defect. Nevertheless, the law is very specific, so if you find yourself in this situation, time is of the essence and it is imperative you seek competent legal counsel right away to ascertain your rights.

In general, home sellers are protected from home buyers who later try to rescind the sales agreement by a number of Georgia doctrines. Today's article, the final in a three part series discusses the Doctrine of Merger by Deed:

Doctrine of Merger by Deed:

Finally and most importantly, a Plaintiff buyer's claims will generally always be denied if once the sale was closed, the seller and buyer never had any warranty against a defect/problem surviving the real estate closing and being included in the warranty deed.

The rule in Georgia is this: the survival of terms and conditions found in the purchase and sales agreement do not survive the closing unless specifically reserved or unless they are not performed by delivery and acceptance of the deed." Bickerstaff Real Estate Mgmt., LLC v. Hanners, 292 Ga. App. 554, 557 (Ga. Ct. App. 2008).

Other than the responsibility to pay a real estate commission and the warranty of title, oftentimes there are no such obligations that survive the closing. Consequently, if a buyer is relying on certain representations that the seller has made, they must be specifically reserved under the warranty deed.

Even in the event of fraud where the defendant fraudulently induced buyers into purchasing a property by failing to disclose defects, any reliance on these representations are unreasonable. Id at 558. The only exception to this rule that the Court has carved out is for builder-sellers. Id. Thus, if the person who build the house fraudulently hid defects prior and during the sale---a buyer may have a claim. In all other cases however, merger by deed is a viable and absolute defense to all land sales contracts. Id. Once the sale was closed, any representations that were not specifically reserved in the purchase and sales agreement failed to survive. Id.

Thus, if the home seller and the buyer never had any warranty against a specific defect that would survive the real estate closing, and because the warranty deed never contained any warranty against such a defect, all claims against the seller are defeated due to the defense of Merger by Deed.

The Supreme Court justices have opined that these laws protect Georgia homeowners and our state's housing market from being vexed to economic death. Cendant Mobility Financial Corp. v. Asuamah, 285 Ga. 818, 821 (2009).

Thus the morale of the story is Buyer Beware! Regardless, if you are a home seller who is being threatened by a lawsuit, or if you are a home buyer contemplating a lawsuit against a seller---the laws are very specific to one's situation and it is absolutely important that you seek competent legal counsel as soon as possible in order to protect your rights.

Under Georgia law, can a home buyer sue a seller who is unhappy with the house? Unless the house seller is also the house builder, the answer is "Generally no."

Fortunately for sellers, the law in Georgia protects home owners who sell their house to people who later suffer from "buyers remorse" and want to sue them to rescind the sale. Unfortunately for buyers, unless the seller was also the home builder, there is not much you can do to rescind a sale agreement even if the home seller fraudulently misrepresented or hid a housing defect. Nevertheless, the law is very specific, so if you find yourself in this situation, time is of the essence and it is imperative you seek competent legal counsel right away to ascertain your rights.

In general, home sellers are protected from home buyers who later try to rescind the sales agreement by several Georgia doctrines. Today's article will discuss the Doctrine of Merger.:

Doctrine of Merger:

If the purchase and sales agreement contains a merger clause (which most do), the buyer cannot allege that the seller made any false representation outside of the Purchase and Sale Agreement that forms the basis of any of his claims because a Merger Clause expressly states: "No representation, promise or inducement not included in this Agreement shall be binding upon any party hereto." This means even if the seller, prior to the purchase and sales agreement, lied to the buyer about the condition of the house or made false representations that were not included in the actual purchase and sales agreement--oftentimes the buyer will be out of luck and the seller will be protected from liability.

The rule in Georgia is that "[w]hen a home buyer elects to affirm a purchase agreement which contains a merger or entire agreement clause, he or she is precluded from recovering for the seller's alleged fraudulent inducement based on misrepresentations made outside the contract." Harkins et. Al. v. Channell et. Al. 174 Ga. App. 478, 481 (2005). This is why it is so important that home buyers take matters in their own hands and make sure the house is fully inspected prior to purchasing it. If there are specific representations that the seller has made that the buyer relies upon then they need to be included not only in the purchase and sales agreement, but also be included in the warranties that are transferred to the deed.

Consequently, if a seller, outside of the purchase and sales agreement, made willful fraudulent misrepresentations by concealing mold, termites, a leaking roof, or other defects---the buyer will often times have no recourse. The Georgia Court of Appeals has ruled that even if a Defendant seller was actively or passively concealing problems to make fraudulent misrepresentations outside of the contract in order to sell a house, that a buyer is entirely precluded from any type of fraud claim in the event of such a merger clause within the purchase agreement. Harkins et. Al. v. Channell et. Al. 174 Ga. App. 478, 481 (2005).

In this case of Harkins, the buyers who had bought 12 rental property homes, sought to rescind a sales agreement alleging fraudulent inducement based on representations by the sellers about the condition of the properties. The Court of Appeals was not sympathetic with the buyers for not sufficiently inspecting the properties. Id at 842. While the sellers did wrongfully make fraudulent misrepresentations about the condition of the properties to the buyers, and while they discouraged the buyers from inspecting the properties, they did not prevent them from doing so by fraud or artifice. Id.

The Georgia Court of Appeals has ruled that in this type of notice "sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found such inquiry might have led. Ignorance of a fact due to negligence, shall be equivalent to knowledge, in fixing the rights of the parties." E.g. Harkins et. Al. v. Channell et. Al. 174 Ga. App. 478, 482 (2005); Westminster Holdings v. Weatherspoon, 237 Ga. App. 819 (1999).

Furthermore, the Plaintiff buyer has no right to rescind the contract and the Georgia Supreme Court has ruled for over fifty years as such: "Where one purchasing real estate [had] the opportunity, as the plaintiff here did, of examining it before buying, but, instead of doing so he voluntarily relies upon the statements of the vendor concerning the character and value, the contract will not be rescinded or set aside, or the purchase price of the land abated, because of the falsity of such statements, unless some fraud or artifice was practiced by the vendor to prevent such examination; and that this is true even though the vendee in buying the land may have acted upon the misrepresentations of the vendor or his agents." E.g. Rush v. Autry, 210 Ga. 732, 733 (1) (1952) cited by Harkins et. Al. v. Channell et. Al. 174 Ga. App. 478, 482 (2005). Accordingly, "any remaining claim of misrepresentation or fraud based on statements" made outside of the agreement including about "the condition of the properties" must fail. Harkins et. Al. v. Channell et. Al. 174 Ga. App. 478, 481 (2005).

Thus the morale of the story is Buyer Beware! Regardless, if you are a home seller who is being threatened by a lawsuit, or if you are a home buyer contemplating a lawsuit against a seller---the laws are very specific to one's situation and it is absolutely important that you seek competent legal counsel as soon as possible in order to protect your rights.

Under Georgia law, can a home buyer sue a seller who is unhappy with the house? Unless the house seller is also the house builder, the answer is "Generally no."

Fortunately for sellers, the law in Georgia protects home owners who sell their house to people who later suffer from "buyers remorse" and want to sue them to rescind the sale. Unfortunately for buyers, unless the seller was also the home builder, there is not much you can do to rescind a sale agreement even if the home seller fraudulently misrepresented or hid a housing defect. Nevertheless, the law is very specific, so if you find yourself in this situation, time is of the essence and it is imperative you seek competent legal counsel right away to ascertain your rights.

In general, home sellers are protected from home buyers who later try to rescind the sales agreement by various Georgia doctrines. Today's article discusses the Doctrine of Caveat Emptor:

Doctrine of Caveat Emptor:

The rule in Georgia is Caveat Emptor (let the buyer beware). This is a common law doctrine which serves as the general rule regarding the purchase of realty. Cendant Mobility Financial Corp. v. Asuamah, 285 Ga. 818 (2009). If a home has mold, termites, a rotten roof, or any other defect---it is the buyer's responsibility to fully investigate this prior to buying the home. In general, the buyer is put on warning and notice that they are responsible to discover such defects and if they discover them after the real estate transaction, unfortunately it is a case of too little, too late.

Consequently, the doctrine of Caveat Emptor defends and protects home sellers and our housing market from being "vexed to economic death by lawsuits by every purchaser of a house who discovers a defect which he believes the previous homeowner should have discovered and revealed. . . [when there] is probably no such thing as a perfect house" and all purchasers know that an older house is almost certainly not perfect. Cendant Mobility Financial Corp. v. Asuamah, 285 Ga. 818, 821 (2009). Thus, this affirmative defense often soundly defeats a buyers claims in a lawsuit.

Thus the morale of the story is Buyer Beware! Regardless, if you are a home seller who is being threatened by a lawsuit, or if you are a home buyer contemplating a lawsuit against a seller---the laws are very specific to one's situation and it is absolutely important that you seek competent legal counsel as soon as possible in order to protect your rights.

Continue reading "Buyer Beware! Georgia Real Estate Law: Can A Home Buyer Sue A Seller For Housing Defects? Part One" »

In Georgia, who is allowed to bring a lawsuit when someone dies? Wrongful death is a terrible thing for any loved one to go through. Oftentimes, many family members are not only emotionally affected by their loved one's loss but can be significantly impacted financially as well.

The people allowed to bring a wrongful death action are in strict order under Georgia law. Currently, the wrongful death claim is considered property of the estate of the deceased, thus potentially involving a large group of the loved one's heirs at law. This can naturally mean a lot of people could have a legal claim depending which relatives are still alive.

Wrongful death lawsuits in Georgia may be maintained primarily by three different persons or groups: (1) surviving spouse or children, O.C.G.A. § 51-4-2 (2) parents, O.C.G.A. § 51-4-4 and (3) the decedent's personal representative. O.C.G.A. § 51-4-5.

Unfortunately for the grand-kids, the statute vesting the right to recover for wrongful death in the surviving spouse or children does not permit participation in the recovery by a grandchild unless his parent was an original claimant and dies during the pendency of the litigation.Tolbert v. Maner, 271 Ga. 207, 208-209, 518 S.E.2d 423 (1999).

However, one of the many unique attributes within Georgia's wrongful death law is that it provides exclusive standing to maintain the action on the surviving husband or wife of the dead spouse without giving all the rights to the claim in him or her (without allowing her claim to all the recovery). "The spouse is required to share the proceeds with the children. This means the spouse acts not solely as an independent party but rather as an individual and as a representative of the children." Mack v. Moore, 256 Ga. 138, 138, 345 S.E.2d 338 (1986) (overruled on other grounds by, Brown v. Liberty Oil & Refining Corp., 261 Ga. 214, 403 S.E.2d 806 (1991)).

The surviving husband or wife of the dead spouse holds any amount recovered in a wrongful death action subject to the law of descents. This means the money from a wrongful death claim must be divided between the surviving spouse and the decedent's children (or the children's descendants equally if the child is dead), with the spouse taking a child's share, but not less than one-third. O.C.G.A. § 51-4-2. Illegitimacy of a child is no bar to his participation in the recovery.

In an action for the wrongful death of a parent or spouse, the lawsuit does not go away because of the death of the plaintiff. It survives to the remaining children of the deceased O.C.G.A. § 51-4-2(b) or to his personal representative.O.C.G.A. § 51-4-5. Fortunately, it is not subject to any debts of the dead person. O.C.G.A. § 51-4-2(e).

Brothers and sisters of the decedent do not have any rights to proceed with a wrongful death action. If the only relatives living are siblings, the right to file a wrongful death claim will fall upon the decedent's personal representative who would administer the estate.

In any event, all wrongful death claims have statutory deadlines that will expire if a lawsuit is not filed in time. Consequently, if you are interested in considering a wrongful death suit, it is important to seek legal counsel as soon as practicable.

Continue reading "Who Can Sue to Bring A Lawsuit When Someone Dies: Wrongful Death Law in Georgia" »

If your Constitutional right as an American to bear arms (2nd amendment),to be free from search and seizure by the government (4th amendment) or your right to freedom of religion (1st amendment) was under attack---what would you do?

Fortunately, our great Constitution has set up a mechanism to enforce the protection of our rights through the 7th amendment. The 7th amendment insures our right to justice through the civil jury system. This means if someone violates our life and liberty (kills us or injures us seriously) or violates our rights and protections under the law---the way we can protect ourselves, enforce our rights, and hold wrongdoers accountable for the harms they've caused is through the civil justice jury system. Rather then taking matters into your own hands through violent means, our great country has set up a civil justice system that allows us to protect ourselves against those who might seek to violate our rights---whether they are a big corporation or a big government. Under the eyes of the law, the little guy and the powerless have a tool for standing up against injustice through the civil jury system--a constitutional right established in our 7th amendment.

Unfortunately over the past decade-- through a high priced publicity campaign funded by big corporate interests---- Americans have been incessantly subjected to an ever constant barrage of brainwashing propaganda which seeks to convince the public of a perversion that attacks the foundation of one of our most important Constitutional rights: the civil justice system, the very foundation of the 7th amendment and the primary tool we have to protect ourselves from violations of these rights.

This publicity campaign has succeeded for the most part in having many Americans believe that defendants who injure or kill people due to acts of wrongdoing or negligence shouldn't have to be held accountable because there are too many "frivolous lawsuits" or to stop "insurance rates from going up"---both patently false arguments which have been scientifically disproven.

John Stossel is a good example of someone who has bought this lie hook line and sinker and continues to perpetuate it through his hogwash "reporting" on attorneys and lawsuits. The problem is that Stossel is very hypocritical and plain inaccurate when it comes to this issue.

Hypocritical because he has had no problem in suing folks himself---unfortunately not due to legitimate reasons, for example when someone is being held accountable for injuring or killing someone due to their wrongful acts (i.e. when a company lies to consumers about a product that kills), but only when he himself was acting stupid-- i.e.goaded one of the wrestling pros into slapping him (Stossel) during an interview and then sued the wrestler.

Stossel does more harm to the American justice system and contributes to the ever present attack against our basic Constitutional rights enforced through our 7th amendment civil justice system with his clearly biased tone.

To really understand what is going on with lawsuits in America and to understand the widespread propaganda rich and powerful special interests have used to brainwash ordinary Americans into actually believing an ideology that attacks their Constitutional rights, everyone should watch this movie. Hot Coffee is the must see movie to explain the true reasons that corporations--primarily banks and insurance companies-- have worked at the expense of ordinary Americans to slowly wear down our Constitutional rights under the 7th amendment.

This is a fabulous film that is not only entertaining, but a great way to educate yourself about rights under the U.S. Constitution that are under attack by powerful interests. Regardless of your political persuasion---whether you are a Tea Partier, Republican, or Democrat---you will enjoy this movie immensely.

"How can I be sure that this non-compete contract is fair and enforceable?" is a question many clients ask us whether they be employers or employees.

For employers:

Our advice is this: Don't go it alone! Believe it or not, there are many employers who think that it is okay to just "cut and paste" whatever contract they find googled over the internet. This is the fastest way to draft a bad contract. The most important thing for any contract is enforceability. That means you know that in the event of a dispute your contract will hold up as "enforceable" in a court of law. Cutting and pasting a contract is the surest way to have your important legal agreement fail to hold up in a court of law, thus failing to protect your and your company.

The law in Georgia changes regularly and in 2010 the legislature made very important revisions to the laws on non-compete contracts. These laws were passed in November 2010 and actually went into effect in January 2011 for all new non-compete contracts. If you have a non-compete contract signed prior to November 2010, the old law will still apply.

In any event, the contracts that employers regularly find on the internet are generally out of date, and worse, often have laws applicable to another state entirely. For example, the laws in Arizona concerning non-compete may be very different then the laws in Georgia.

Unless you are applying federal law (which applies to all states, e.g. laws on employment discrimination under Title VII of 42 U.S.C. § 2000e), every state has different laws. The laws in Georgia may be very different than the law in Alabama, Tennessee, or New York. Thus, the contract you cut and pasted off the internet very possibly may be created under a different state's law and will not even be applicable to Georgia.

Consequently, it is important to obtain the assistance from an attorney who can help you successfully navigate the law and insure that you create a contract that protects your interests.

For employees:
Unfortunately, many times the non-compete clause your employer wishes you to sign may not have been properly drafted by a competent attorney. Therefore, a lot of times we have clients who present non-compete contracts that their new employer wishes them to sign which are not even in compliance with Georgia law. Before you sign a non-compete contract, make sure an attorney reviews this document in order to protect your interests. The lawyer can tell you whether the contract is in fact legal or not, whether it will likely be too restrictive for you in the future, the likelihood of its enforceability, and whether it makes sense for you to negotiate certain provisions.

Prior to the new law, Georgia did not alow "blue-penciling" which meant if a non-compete law had an illegal section, the whole non-compete contract could be deemed void and thrown out. Now, with the recent changes in Georgia, the courts will allow the invalid section to be removed or made compliant with the law, but the rest of the contract will still apply. This change protects employers, but does not protect employees.

Consequently, before you sign your name on the dotted line, make sure you know what you are signing by seeking legal counsel to protect your interests.