Caution Landlords: Accepting Money After Filing an Eviction Impacts Your Rights

Caution Landlords: Accepting Money After Filing an Eviction Impacts Your Rights

By: Attorney Jon David W. Huffman

As first published on February 1, 2013 in The Profit
by the Atlanta Real Estate Investor Alliance.

Landlords often have mixed emotions when their tenants call and offer them money after a dispossessory warrant (an eviction) has been filed.  On one hand, landlords are in the business of collecting rent.  However, they worry how it may affect moving forward with the eviction.  Accepting a payment after an eviction is filed does affect your rights. 

Residential Landlords

A residential landlord has a duty to accept a payment from a tenant who is in default if and only if the tenant tenders “all rents allegedly owed plus the cost of the [eviction].”[1]  However, the tenant cannot wait until the last moment to do this.  They must tender the full payment within seven days of the day they were served the eviction paperwork.[2]  There is no need to worry about a tenant doing this perpetually because a landlord is only obligated to accept this type of payment once per year.[3]  Making this payment provides a complete defense to the eviction and, upon receipt, a landlord should dismiss the eviction.

If a residential tenant offers a partial payment, however, BEWARE!  A residential landlord who accepts a partial payment from a tenant after an eviction has been filed waives his right to continue with the eviction and admits the continuance of the lease.[4]  In simple terms, the eviction fails and the landlord must start the eviction process over if he wishes to evict the tenant.  It does not matter when the partial payment is made – whether one hour after the eviction is filed or five minutes before the eviction trial.  Thus the landlord must either reject the partial payment or, if accepted, he must restart the eviction process. 

            Commercial Landlords

            Perhaps unsurprisingly, the law on “non-residential” or commercial leases allows more freedom to contract. 

            A commercial tenant’s right to tender past due rent and the dispossessory fee can be contractually waived.[5]  Indeed, in many commercial real estate leases, this right is waived.  All commercial landlords should have an attorney review their lease to ensure that they have the right to regain possession of their property upon default without giving a tenant the right to pay the past due rent and dispossessory fees.

Following the freedom-to-contract principle, a commercial landlord can accept a partial payment without waiving his rights to evict.  Under O.C.G.A. § 44-7-52(c), a commercial landlord is free to take a partial payment and continue the eviction process unhindered.  Of course, any money received would offset the landlord’s damages.  So commercial landlords, cash that check and keep on going!

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[1] O.C.G.A. § 44-7-52(a).

[2] Id. 

[3] Id.

[4] Gay v. American Oil Co., 115 Ga. App. 18, 153 S. E. 2d 612 (1967).

[5] Hardwick v. 3379 Peachtree, 184 Ga. App. 822, 824, 363 S.E.2d 31 (1987).