Before any Dispossessory Action may begin, the Landlord MUST make a demand for possession of the property. The demand may be VERBAL or WRITTEN. This procedure MUST be perfected prior to the issuance of a Dispossessory.
The only LEGAL way a Landlord can remove a Tenant or the Tenant’s Possessions from the Rented Premises without the Tenant’s expressed permission is by filing a Dispossessory.
The most common ground for Dispossession is the Tenant’s failure to pay rent when it becomes due. When this is the grounds for Dispossession, the rent must be past due before the Dispossessory process can begin.
When grounds for Dispossession are other than that of non-payment of rent, a sixty (60) day notice for the Tenant to vacate the premises is required. This notice may be oral, however, it is recommended that the notice be given in writing.
After the Dispossessory has been issued, it must be recorded in Magistrate’s and the Filing Fee is due at that time. The Dispossessory is then sent by the Clerk to the Sheriff’s Department to be served. The Gilmer County Sheriff’s Department is responsible for service on all Civil Cases which are handled on a first come first serve basis. The Magistrate Office has no input or control over the service of Civil Papers. The Sheriff’s Department does serve all Civil Papers in a timely manner.
The two types of service are as follows:
- Personal Service – The Dispossessory is actually placed in the hands of the Tenant or the responsible adult at the residence. The Dispossessory must be served personally to enable a Monetary Judgment against the Tenant.
- Tack and Mail Service – Is perfected when the Sheriff’s Department is unable to locate the Tenant at the residence and leaves a copy of the Dispossessory on the door and places a copy in the mail. This type of service does not allow a Monetary Judgment against the Tenant (unless an answer is filed) but it will restore possession of the property to the Landlord.
Once the Dispossessory has been served, the Tenant has seven (7) days to file an answer to the Dispossessory suit. The law allows the Tenant to file an answer which in turn sets a hearing so both parties can relate their account of the facts to the court. All possible efforts are made to have the hearing with 5 working days to keep from prolonging the eviction process.
At the hearing, it is the Landlord’s responsibility to prove his claim. After a Judgment is awarded and signed, you have three options to satisfy the judgment, (1) cash, (2) a Fi-Fa, (3) Garnishment of wages and/or bank accounts. These procedures begin in the Magistrate Court office.
Writ of Possession can only be done after a Judgment is signed by the Magistrate Judge. The Judgment will include a date specifying when the Tenant must have the residence vacated. If after midnight on the specified date the Tenant has not moved, it is the Landlord’s responsibility to notify the Magistrate Office of this fact on the NEXT business day during business hours. At that time, the Magistrate Judge will sign a Writ that will be taken to the Sheriff’s Department to be served. The Sheriff’s Department will contact the Landlord concerning the execution of the Set Out Order.
If the Tenant does not or will not remove his belongings from the premises, the Sheriff’s Department will make an inventory of the items to be moved.
IT IS THE LANDLORD’S RESPONSIBILITY TO HAVE THE TENANT’S BELONGINGS REMOVED FROM THE RESIDENCE.
UNDER NO CIRCUMSTANCES WILL THE SHERIFF’S DEPARTMENT PHYSICALLY REMOVE ANY ITEM FROM THE RESIDENCE.
After the Tenant’s belongings are set out, the Landlord is not held responsible for those belongings.
IT IS A CRIME IN THE STATE OF GEORGIA FOR CLERKS OR JUDGES IN THE MAGISTRATE COURT TO GIVE LEGAL ADVICE.
UNDER NO CIRCUMSTANCES WILL ANY MAGISTRATE JUDGE DISCUSS A CLAIM WITH EITHER PARTY PRIOR TO A HEARING.