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" »

Williams Oinonen LLC often receives phone calls from Georgia citizens, innocent owners of vehicles, homes, and/or cash who have had their property taken by law enforcement agents because, supposedly, their property is related to a drug offense. The process of taking property in this manner is called forfeiture. And Georgia Code 16-13-49 primarily governs forfeitures related to alleged drug sales/transactions. What's important for you to know is that you can fight to regain your property. But you must act quickly, because forfeiture laws and rules are complicated, and very time sensitive.

For example, Georgia Code 16-13-49 requires you to respond within thirty (30) days of receiving notice that your property is subject to forfeiture. If you don't respond within thirty (30) days, then, "all right, title, and interest in the property is forfeited to the state and the district attorney shall dispose of the property as provided" by Georgia law.

Furthermore, your claim (response to notice of forfeiture) must be sent by certified mail, return receipt requested or staturory overnight delivery. And your claim must:

1. Be signed by the owner or interest holder of the property under penalty of perjury;

2. Be sent specifically to both the law enforcement agency that took your property and the relevant District Attorney; and

3. Contain specific details such as (a) the nature and extent of your interest in the property; (b) the specific provision of O.C.G.A. § 16-13-49 relied on in asserting that your property is not subject to forfeiture; and (c) all essential facts supporting each assertion, amongst other specific details required by law.

You must comply with the above-mentioned, and more, in order to have a mere "opportunity" at getting your property back. Then, if you do comply with the requirements of Georgia law to challenge what is called an administrative forfeiture proceeding, you still must challenge a potential judicial forfeiture proceeding. Simply put, the state agency will first attempt to take your property through an administrative proceeding, which is discussed above. If you meet those deadlines and other legal requirements, the state will most likely file a "judicial action" (complaint for forfeiture) in an attempt to take your property through a judicial forfeiture proceeding. You then must comply with more strict guidelines, rules, and laws!

If all that was not enough (and I've only touched on a few aspects of this complicated area of law) the state may turn your case over to the federal government in what is commonly referred to as adoptive forfeiture. The federal government will then file a judicial forfeiture action in an attempt to take your property.

You must have an attorney who understands both federal forfeiture law and Georgia forfeiture law in order to adequatley protect your rights.

Significantly, state and federal agencies attempting to take your property must comply with strict procedural timelines and laws, too, meaning you may be able to get your property back by demonstrating that the government failed to comply with mandated, legal requirements. And there are many defenses that may apply to your case such as an "innocent owner" defense or a due process defense. However, as I've stated, you need a good attorney who understands this area of the law.

Continue reading "Georgia Forfeiture Law: Are You An Innocent Owner? Did The Government Take Your Property? What Can You Do To Get Your House, Car, or Money Back From The Government" »