The tenant in any dispossessory proceeding in which the right of possession cannot be determined within two (2) weeks must pay into the court registry rent allegedly owed prior to the proceeding and rent as it accrues during the proceeding. O.C.G.A. § 44-7-54(a). The tenant runs the risk of eviction for any late payment. Black letter law requires strict compliance with the applicable payment schedule.
The lease at issue in Vinings Jubilee Partners, Ltd. v. Vinings Dining, Inc., 266 Ga. App. 34, 596 S.E.2d 209 (Ga. Ct. App. 2004) required the tenant to pay base rent monthly and percentage rent annually. It provided a three (3) day notice-and-cure period to the tenant. The landlord filed the dispossessory action on October 22, 2002. The 2002 percentage rent was due by February 14, 2003. The tenant received a notice of default for failure to pay the percentage rent on February 18, 2003, and made a partial payment on February 19. On February 25, the landlord moved for a writ of possession and notified the tenant of the contractual late fee on the percentage rent. The landlord subsequently terminated the lease and demanded possession on March 4 based on the tenant’s failure to pay the full percentage rent amount due within three days after notice. The tenant acknowledged miscalculation of the percentage rent and deposited an additional amount in the court registry on March 12.
After a hearing, the trial court held that the partial percentage rent payment on February 19 was timely and that the tenant’s failure to pay the deficiency by the deadline in the lease was not a material breach upon which the court would issue a writ of possession. The Court of Appeals reversed, reasoning that “O.C.G.A. § 44-7-54 mandates strict compliance and does not permit exceptions for late payments. Moreover, in a commercial lease, the default provisions control, and the lease at issue does not contain a clause permitting the tenant to avoid termination of the lease upon attempted, good-faith compliance.” The tenant failed, as required by statute and the lease, to pay the entire sum due within three (3) days after the landlord’s default notice. This breach, contrary to the decision of the trial court, was not immaterial but instead required the court to issue a writ of possession in accordance with O.C.G.A. § 44-7-54(b). See also Burnett v. Reeves, 258 Ga. App. 846, 846-47, 575 S.E.2d 747, 748 (Ga. Ct. App. 2002) (trial judge did not err in granting writ of possession to landlord where tenant failed on two occasions to make timely rent payments into the court registry); Yeomans v. Am. Nat’l Ins. Co., 150 Ga. App. 334, 335, 258 S.E.2d 1, 2 (Ga. Ct. App. 1979) (affirming trial court’s issuance of writ of possession when tenant failed to make timely payment when tenant paid after the due date that fell on a Sunday).
Rent’s being due on a Saturday, Sunday or holiday does not excuse payment after the due date. In Yeomans v. American National Insurance Co., the defendant lessee was ordered to pay rent into the court registry “on or before the first day of the month.” The lessee made several timely payments but did not make the October 1 payment until October 2. The trial court subsequently issued a writ of possession on alternative grounds, one of which was failure, “to make the October, 1978 rental payment into court on or before the first of the month as required by the court’s order,” as required by Ga. Code Ann. §61-304(c) (the predecessor to O.C.G.A. § 44-7-54). On appeal the lessee relied on Ga. Code Ann. §102-102(8) (predecessor to O.C.G.A. § 1-3-1(d)(3)) and Brooks v. Hicks, 230 Ga. 500, 197 S.E.2d 711 (1973), to argue that the tender on October 2 was timely because October 1 fell on a Sunday. The appellate court dismissed that argument, noting that Ga. Code Ann. § 102-102(8) (predecessor to O.C.G.A. § 1-3-1(d)(3), which now also addresses periods of time measured in days, weeks, months, years or other measurements of time except hours) applied only to extend a period described by “a number of days,” and not with reference to a date certain.The appellate court held that the lessee’s reliance on that statute was therefore misplaced. Payment “before” October 1 would have been timely, because it could not have been made “on” that date, but payment on October 2 was not timely. The trial court properly granted the writ of possession due to failure of timely payments.
Some judges may deem draconian the termination of a lease based on the tenant’s being only a day or two late with rent. The black law is clear, however. In any event, a tenant required to pay rent during a dispossessory proceeding must be timely with those payments to avoid the risk of the court’s issuing a writ of possession. A landlord may want to check with the court clerk periodically to make sure payments are timely made.