A residential tenant in Georgia may not be evicted without the landlord’s satisfying the statutory dispossessory requirements. A commercial tenant in Georgia may waive those requirements. The threshold for a court’s finding a waiver is not high. Recent research convinces me that many, if not most, commercial leases contain language upon which a court could find waiver. Then why go through the dispossessory process? I believe that a commercial landlord should go through the statutory dispossessory process unless the tenant has clearly abandoned the space and the statutory process would therefore be a meaningless exercise, there is a legitimate need to get into the space immediately and the eviction will not likely meet with resistance.
As Bill Dawkins points out in his book on Georgia landlord-tenant law, a landlord that takes possession and disposes of the tenant’s personal property without going through the statutory process runs the risk that the tenant subsequently argues that it did not intend to abandon its property and sues the landlord for conversion. A tenant’s vacating the space does not equate to abandonment of its property. A landlord with a properly-obtained writ of possession may, with the sheriff’s oversight, remove the personalty without fear of a tenant’s subsequent claim of conversion. I therefore advise commercial landlords that, absent some overriding reason to the contrary, this is the way to go.
A client recently called me about a space recently vacated by a restaurant tenant. The client, as well as tenants in adjoining spaces, were concerned about smells emanating from, and vermin being drawn to, whatever food stuffs may have been left in the space. The tenant had terminated its electricity account a few weeks earlier, thereby arguably evidencing its intention to abandon the space. The only address in the lease for giving a demand for possession was the leased premises, so delivery of a demand for possession would have been meaningless. The lease contained language that I determined constituted a waiver of the statutory requirements. I advised the client to go ahead and change the locks, effectively evicting the tenant, provided that they received no resistance. Assuming the requisite lease language, that is the one caveat to the self-help eviction under a commercial lease: there may be no breach of the peace. I told the client to cease the process upon any sign of resistance. The other consideration here was that the landlord did not remove the tenant’s personalty. There being no immediate new tenant, the landlord is able to store the former tenant’s property in the space. If the tenant wants it, it is there. Disposition of the tenant’s property is an important consideration in whether to pursue self-help eviction or to go through the statutory process. A landlord pursuing self-help must carefully preserve the tenant’s property. Bill Dawkins’ book thoroughly discusses what the landlord should do in such a situation in terms of inventorying and storing the property. A landlord with a writ of possession does not have those concerns.
So, the determination of self-help or no self-help depends on the lease language and the circumstances. Careful analysis must precede a self-help eviction.