- Do I need to hire an attorney?
You do not need to hire an attorney to appear in Magistrate Court. However, you may find that the opposing side has hired an attorney.
- What do I need to have to file a dispossessory warrant?
You need to have the defendant’s complete name and address and the property needs to be clearly marked. You do not need to produce a written lease or other agreement in order to file a dispossessory warrant. More instructions, associated costs and information is available on the Dispossessory Warrant page.
- What is a demand?
As the landlord or the landlord’s agent, you must make a demand for possession of the premises or payment of the past due rent.
- What is a writ of possession?
You can make an application at the Clerk’s Office using a form that they provide you with. There is a $13 application fee. The Marshal’s service fee for a writ of possession is $75. After the judge has signed the writ you will have to contact the Marshal’s office to schedule the eviction. The Marshal is present at an eviction to serve the writ and preserve public safety but they do not provide physical labor.
- How do I get my writ of possession?
The writ of possession is a document signed by a judge that directs the Marshal or his Deputy Marshals to remove the named persons or other occupants from the premises identified in the dispossessory warrant and on the writ.
- If I am not the owner, can I file a dispossessory warrant or come to court for the owner?
Yes. You can be required to provide some proof that you are designated to act as agent for the landlord. The Clerk’s Office has a designation of agency form that you can use for that purpose.
- May I use this process to evict a spouse?
No. You cannot use a dispossessory warrant to remove a spouse from the home. If you wish to remove your spouse from the home because of violence or a threat of violence, you can request a Temporary Protective Order from the Superior Court of DeKalb County. If there is no violence or threat of violence, then you will need to initiate divorce or legal separation proceedings in the Superior Court of the county where your spouse resides.
- How long does it take to get someone out of my home?
There are several steps involved in the process and you should not expect to complete the process within thirty (30) days, particularly when the defendant files an answer and a court hearing is scheduled. The process will likely be shorter than described above if a defendant does not file answer within seven (7) days of being served.
- I do not know the names of the people who are living in my property. How can I proceed?
There is a cause of action called an intruder’s warrant that is designed to be used where the occupant of a landlord’s property never had the right to be there. Alternatively, you can file a dispossessory warrant and name the intruder as a John Doe.
- How is a dispossessory warrant served?
A dispossessory can be personally served, it can be served on a person of suitable age who resides on the property or it can served by being tacked on the door and mailed to the address by first class mail.
- May I have the tenant served at work?
Yes, the tenant can be served at work.
- What happens after the defendant has been served?
A defendant has seven (7) days to file an answer to a dispossessory warrant. The answer can be filed in person at the courthouse in accordance with the instructions on the warrant.
- May I mail my answer in?
Yes, you can mail your Answer, but in order to ensure that the Answer is received by the Clerk’s Office within seven (7) days, mailing must be done in a timely manner. The Clerk’s Office does not accept faxes or emailed Answers and you cannot Answer a Dispossessory Warrant over the phone. A late Answer can result in a Writ of Possession being issued without a defendant having the opportunity to appear before a judge.
You may also e-file your Answer. If you have properly filed your Answer by efiling, you should receive an email confirmation of your filing. Please note that the efiling program, Odyssey eFileGA, currently charges a fee to download and use the program. This is a user fee from Odyssey eFileGA, not from the Court. There is no charge to file an Answer. You can also e-file your Answer for free on the computers at the Clerk’s office.
If you have a problem using eFileGA website, you should contact the website directly and not the Court.
- How long do I have to file an answer to a dispossessory warrant?
An answer to a dispossessory warrant must be filed in the Clerk’s Office by the seventh day after service.
- What happens if a defendant does not file an answer to the dispossessory warrant?
If the defendant does not file an answer, the plaintiff can submit an application for issuance of the writ of possession. If the tenant was served by tack and mail, the plaintiff will not get a default judgment for any monies sued for.
- I received the warrant and tried to pay my rent. Why won’t the landlord take my rent?
The landlord may not take your rent because doing so jeopardizes their chance of having a judge issue a writ of possession. The judge is likely to dismiss the landlord’s case and they would have to file a new dispossessory warrant.
- May I pay my rent into court?
The Clerk’s Office cannot accept rent unless a judge has issued an order to do so.
- Is there a charge to file an answer to a dispossessory warrant?
No. There is no charge to file an answer to a dispossessory warrant.
- May someone else file an answer on my behalf?
No. Someone who is not named as a defendant, but occupies the premises, can file an answer. However, in this instance, they will be treated as responding for themselves, with their names added to the action as respondents.
- I have made arrangements with the defendant for them to pay the rent. Do I/we still need to come to court?
If you are the plaintiff and you fail to appear at court, the judge will dismiss the case for want of prosecution. If you know in advance of the court date that you do not wish to go forward with the case, you should file a dismissal with the Clerk’s Office.
- I have paid the past due rent to my landlord, do I still need to come to court?
If you can verify with the Clerk’s Office that the plaintiff has filed a dismissal of the case against you then you are not required to come to court. If you cannot verify that the case has been dismissed, then you may wish to come to court. Failure to do so puts you at risk of having a judgment entered against you for the past due rent and a writ of possession for your eviction.
- What happens if I file my answer late, i.e. after the answer date in the summons?
The Clerk’s Office will accept a late answer, and it will be marked as late. A late answer will not prevent a landlord from applying to a judge for a writ of possession.
- Where do I pay off the judgment?
If the Court enters a judgment against you, unless directed otherwise, you pay that money to the plaintiff or their agent.
- Will the judgment appear on my credit report?
The Court does not report information to credit reporting agencies and it does not control how long that information appears or what is reported. Court records are public records and credit reporting agencies can access that information. If you have a dispute regarding the reporting of the information by a credit reporting agency, then you will need to contact that agency. You can obtain certified copies of the Court’s records for a fee if you require them. Please note that while a credit reporting agency may only report a judgment on your credit report for seven (7) years, the Court’s record of that judgment is not purged after seven years.
- When can I get my security deposit back?
Most of the time, the Court cannot address the security deposit at a dispossessory warrant hearing because the lease has not yet ended. Since the landlord has 30 days to return your security deposit after you have vacated the premises, you must wait at least 30 days after you have vacated to ask for your security deposit back.
Vacating the premises means you have moved out and returned the key. You should also provide a forwarding address because the landlord has no obligation to find your new address to return the security deposit.
The landlord can subtract any past due rent or damage done to the property from the security deposit before returning it to you. However, the landlord cannot charge you for “normal wear and tear,” which includes any minor damage that would be expected, given how long you have lived there. Within three days after you have moved out, the landlord should inspect the premises and prepare a list of damage to the apartment. This is commonly called the “move-out inspection.” This list must include an estimated cost to repair the damage. If you disagree with anything on the list, you must write it down on the move-out inspection when you sign it. If the landlord subtracts any damage done to the property from the security deposit, the landlord must mail you the list along with the remainder of the security deposit. This will be mailed to the forwarding address you provided. If you are not present for the move-out inspection or your landlord does not do one, you may still have a right to your security deposit.
If, after a month, your landlord has not returned the security deposit or provided the list of damages, you can file a new case in Magistrate Court, separate from the eviction the landlord filed against you. You should file your action in the Magistrate Court of the county where the other party resides. If your landlord owns more than ten units or uses a property manager, you may be able to get three times the security deposit.
- I work during the day – are dispossessory cases heard in the evenings?
Dispossessory cases are heard three to four days per week on Mondays, Tuesdays, Wednesdays, and Thursdays. Calendars begin at 9:00 am or 1:00 pm. On Mondays and Tuesdays, there are evening calendars, which begin at 6:00 pm.
- Can I withhold rent if my apartment needs repairs and the landlord has failed to make them?
A tenant must give the landlord reasonable notice of repairs that need to be done. If the landlord fails to make the repairs within a reasonable time, the tenant may make reasonable repairs and deduct the reasonable cost from the rent. Alternatively, the tenant can file a lawsuit against the landlord for damages arising from their failure to repair. If the landlord has filed suit against the tenant, the tenant may seek to offset the reduction in the value of the leased property caused by the landlord’s failure to repair.
- Can I remove the tenant before filing a dispossessory or immediately after I have filed it?
No. A landlord cannot remove the tenant from the premises in either situation. A landlord must complete the legal dispossessory process before removing a tenant and the tenant’s property from rented premises. If a landlord uses self-help to evict a tenant without a dispossessory, it is a tort for which the tenant may recover damages in a civil action. A landlord who cuts off utilities may be subject to misdemeanor prosecution under O.C.G.A. Section 44-7-14.1.
- How will the case be presented in court?
Having filed the dispossessory action, landlords carry the burden of proving their case. Where witnesses are called and the landlord testifies, the other party has an opportunity to cross-examine the landlord and any witnesses. When all of the plaintiff’s witnesses have testified and been cross-examined, the tenant may offer testimony as well as call witnesses. The plaintiff will then have the chance to ask questions of the tenant and those witnesses called by the tenant. The judge may ask questions of either side and will then issue a ruling. In the majority of cases, you will leave the court with a copy of a signed order.
- Will an appeal stop an eviction from going forward?
An appeal will only stop an eviction if there is an order to require the payment of rental or market value of the property into the registry and the defendant complies with that order every month as long as the appeal is pending.