THIS IS GENERAL INFORMATION ONLY. IF YOU NEED LEGAL ADVICE, PLEASE CONSULT AN ATTORNEY
Welcome to the Magistrate Court of Barrow County. We are here to assist you with the procedures of this Court. This information is of a general nature and is not meant to be a complete disclosure of the services of this court or of legal principles and procedures of this Court. If you have any questions, please do not hesitate to ask us. IF YOU NEED LEGAL ADVICE, PLEASE CONSULT AN ATTORNEY.
1. Definitions
A Tenant at Will is when there is no set date for the terminations of a rental agreement.
A Tenant at Sufferance is when one comes into possession of property lawfully, but wrongfully remains in possession. For instance, where the bank has foreclosed, the prior owner if still residing on the property, becomes a tenant at sufferance.
A Leasehold (Lease)Tenant is a tenant who has a written lease with all the necessary terms of a lease in the contract.
Tenant Holding Over is a tenant who holds possession of property beyond the term for which the premises were leased.
2. General Provisions:
There are four common grounds for dispossession of a tenant: (1) the tenant’s failure to pay rent when due; (2) the tenant’s holding over beyond the term of the lease or rental agreement; (3) to place the landowner in possession of the property being held by a tenant at will or at sufferance;
(4) lease violation; (5) violation of a sixty day notice The most frequently used ground for dispossession is the tenant’s failure to pay rent when it becomes due. Such a dispossessory action may not be filed until the rent is actually past due. In order for a landlord to dispossess a tenant for non-payment of rent, the past due rent must be unpaid when the dispossessory proceeding is filed. If the landlord accepts rent that becomes due after the filing of a dispossessory action based on the non-payment of rent, the landlord may have waived his right to dispossess based on non-pay-ment since he has, by acceptance of rent, admitted that a lease or rental agreement continues to exist.
Another ground for dispossession is the tenant’s holding over beyond the term for which the premises were leased or rented. The tenant who does not leave the property upon the expiration of a lease or rental agreement becomes a tenant holding over. Technically, a tenant holding over may be called a tenant at sufferance. The landlord is not required to give a 60 day notice to terminate a tenancy at sufferance. No notice is required to a tenant at sufferance. The landlord must demand his property and the demand must be refused before initiating a dispossessory action. The landlord must give the tenant a 60 day notice to terminate a tenancy at will or a month-to month tenancy. Notice is not required if the rent is past due.
The rental contract must name someone to receive notices and lawsuits. If not, the tenant may serve the person signing the contract.
The tenant cannot generally sublease without the consent of the Landlord.
PRECEDURE FOR DISPOSSESSORY
1. Prior to filing a dispossessory in this court, the Landlord must make a demand for the premises. This demand may be either in writing or oral. The advantage of writing is that the demand is then not subject to debate as to whether it was given or not. An agreement by the Tenant to vacate does not relieve the demand requirement. The demand must be made after the default has occurred, but prior to the commencement of the dispossessory.
2. The Magistrate Court provides forms for filing dispossessory proceedings. These include an application form which provides necessary information to the court and an affidavit which recites information about the landlord-tenant relationship, notice as required by law, and other vital data regarding the type of tenancy. The affidavit may be made before the clerk of the Magistrate Court or any magistrate. The affidavit will then be filed with the Court. The Landord will indicate if the dispossessory is to be Tack or Served Personnal.
3. After the dispossessory affidavit is made and filed with the court, the clerk will sent the dispossessory to the Sheriff's Office. The summons requires that the tenant answer in writing within seven days of the date of service, unless the seventh day is a Saturday, Sunday or legal holiday, in which case the answer may be timely filed on the next day which is not a Saturday, Sunday or legal holiday.
4. A copy of the dispossessory summons and a copy of the affidavit must be served upon the defendant/tenant. These two items usually appear on the same sheet of paper and are served as one document. If the defendant cannot be personally served, service can be made upon any person residing with the defendant who is 18 years of age or older and not laboring under a mental disability. If service cannot be made as described here, the constable may tack a copy of the summons and affidavit to the door of the premises in question and then mail a copy to the last known address of the defendant (typically to the property in question).
5. If a dispossessory action is served by tacking and mailing, the court can issue only a writ of possession, giving the landlord possession of the property. No money judgment can be issued on tack and mail service. A default judgment for rent claimed in the affidavit may not be granted where service upon the defendant is made by tack and mail unless the defendant files an answer after tack and mail service and fails to appear at the scheduled hearing after due and proper notice to the defendant.
6. If a defendant answers a dispossessory action and submits himself to the court’s jurisdiction, the court can then, after hearing evidence or upon default, grant a judgment for rent against the defendant, despite the type of service.
7. If the defendant does not answer within seven days after service of the affidavit and summons of the dispossessory , the landlord is entitled to a writ of possession on the eighth day if the eighth day does not come on a Saturday, Sunday, or legal holiday. The defendant must answer the dispossessory summons within seven days of the date of service. The court does not automatically issue a writ to the landlord after the seven days have expired. The landlord must request the writ and pay the court $25.00
8. If the seventh day comes on a Saturday, Sunday or legal holiday, the last day to answer is the next day which in no a Saturday, Sunday or legal holiday. If the proceeding is based on non-payment of rent, the tenant may as a matter of right, pay to the landlord within seven days of the date of service of the summons all rents alleged to be due plus the costs of the dispossessory warrant. The payment of the costs and rents in such a case is an absolute defense to the dispossessory. Payment may be used as an absolute defense only once in any twelve month period. When a tenant pays rent as a defense, he or she should pay the rent either to the court or the landlord. After paying the landlord, the court must be notified of this to stop proceedings.
9. If after a hearing the Tenant appeals the decision of the Court, then the disputed amount of rent must be paid into the Court along with the $80.00 appeal fee. The Defendant will pay the rent into the registry of the court each month until a decision is made in the Superior Court. If the tenant fails to pay the rent in a timely manner then a Writ of Possession will issue upon demand.
MAGISTRATE COURT OF BARROW COUNTY
JUNE DAVIS
Chief Magistrate