By Will Downs will@downslawllc.com
Posted October 7, 2019
Let’s face it, the terminology lawyers use is often confusing, and sometimes, impossible to understand. Navigating a commercial eviction is no different - and confusing terminology is one of the reasons the eviction process is easily and often misunderstood. But as a Landlord, it can be crucial to your business that you comprehend the eviction process, so keep reading, because we’re here to help! In the eviction process, there are several terms that have similar, yet not distinct, meanings. Here is a quick run through of the three most commonly confused terms.
Dispossessory. A dispossessory is the type of lawsuit you file to have someone evicted. It comes from the word dispossess, which means to take property away. And now for the confusion: Dispossessory isn't the only word for this type of lawsuit. Courts sometimes use other phrasing, such as “Proceeding Against Tenant Holding Over” (or PATHO).
Eviction. An eviction is the formal act of removing someone from a rented property. An eviction can only be conducted at the direction of the Sheriff or Marshal. It is “at the direction” because the sheriff’s deputy does not actually perform the work in an eviction (it is up to the landlord to provide the labor). If the Sheriff or Marshal isn’t present, then you have not achieved a formal eviction.
Writ of Possession. This is what’s given to the Landlord by the court in order for the landlord to schedule an eviction with the Sheriff or Marshal’s office. In other words, you have to have a writ of possession before you can conduct an eviction. The writ of possession is awarded (or granted) by the judge in the dispossessory lawsuit.
NOW, HERE’S THE STEP-BY-STEP OF HOW AN EVICTION WORKS
1. First you must obtain a writ of possession from the court in a dispossessory lawsuit. Assuming you, the Landlord, win at the dispossessory trial, the court will typically grant a writ of possession that you can apply for in seven (7) days. This seven-day time period is set by Georgia law and the court will only grant an immediate writ of possession if the Tenant doesn’t appear for the dispossessory trial or doesn’t file an answer (response) to the Dispossessory Lawsuit.
2. You must apply for the writ of possession with the Clerk’s office (where the dispossessory was filed) after the 7-day period if the tenant hasn’t moved out. If the tenant has already moved, then you can likely re-take possession of your property without going through the formal eviction process (though this is case specific, so check with an attorney first). There is a fee associated with the writ application, typically around $25.
3. Next, you coordinate the eviction with the Sheriff or Marshal’s office. Generally, the clerk will transfer the writ of possession to the sheriff’s office after it’s signed by the Judge. You may never see an actual writ of possession (the document is issued directly from the court to the sheriff) and it’s up to you to contact the sheriff’s office to check on the writ of possession and to coordinate the eviction. How do you do this? Try contacting the civil division of the sheriff's department and tell them you need to schedule an eviction. They will set the date for you and instruct you regarding their requirements (such as how many eviction crew members are required to assist).
4. Finally, the Landlord and eviction crew (that you are responsible for hiring) conduct the eviction at the Sheriff’s direction. Typically, the sheriff will want all items removed from the premises and placed at the nearest curb. The Sheriff or Marshal will confirm when the eviction is complete and will notate that the writ has been executed (again, you will not necessarily be given a copy, but it is on file at the court, should you want one).
A FEW FINAL NOTES ON THE PROCESS -
· A recent Georgia law provides that all writs must be executed within 30 days. This means that you should apply for the writ and arrange to conduct the eviction within 30 days from the date the writ of possession is issued. Otherwise, you might have to start the dispossessory process all over again.
· You cannot accept any rent money after obtaining the court judgment. In order to apply for the writ, you will have to sign an affidavit affirming that you have not accepted any money since the court date. If you have, the Judge will not grant the writ. Also, the Sheriff won’t conduct an eviction if you’ve accepted any money post-judgement.
Whew. Got all that?
If not-- don’t lose any sleep over it! Give us a call. As always, Downs Law is here to guide you through the eviction process from start to finish. We have years of experience handling dispossessions and can help you navigate the process by making it manageable and predictable.
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