All About Georgia Statutes Relating To Abandonment of Property
Property abandonment, in essence, is a legal term used to describe the situation when a property owner has vacated and left behind his or her property with no intent to return for a substantial period of time and with no apparent intention of ever returning. Abandonment can be willful or can result from neglect or failure to pay attention to the property on a regular basis. Though property abandonment can be criminal in nature, it is most often the subject of civil litigation. In any event, the existence of an abandoned piece of property is generally of great concern to the local municipality and/or neighborhood associations who are then tasked with the responsibility for addressing those truly abandoned properties.
In Georgia, in order for this situation to rise to abandonment, three elements must exist and be present: (a) The presence of a jurisdiction with the power to do so; (b) vacant land which must have been intentionally treated in such a way as to indicate that the owner was consciously and deliberately abandoning the same thereby demonstrating his intent to abandon; and (c) the intent.
The intent element is one of the keys to determining the existence of property abandonment and therefore the existence of a legal right to attempt to remove the property from the tax rolls. The intent must be one that is equally ego-centered as it is altruistic . This intent must be one of conscience and methodical decision, free of fear, pressure or stress of any kind or from any source. What results once the intent somewhere along that spectrum is probably one of the keys to determining if you have abandonment or not.
Next, we must look at the vacant land requirement. Forsaking any efforts regarding a structure, building, etc., will not rise to the level of abandonment, as the Courts have consistently held that a dwelling which is kept in suitable and usable condition, in the eyes of the law, cannot qualify as abandoned.
However, the abrogation of interest in a dwelling does not automatically make it run afoul of our law. Instead, the key inquiry becomes, whether the intent to relinquish the property was specific or specific enough to constitute abandonment. It is true that abandonment will not arise where the intention to relinquish the property is merely a fleeting thought or mere passive indifference to its continued existence. The intent must be one that is of substance and of something more than just a short-lived episodic thought process.
The final determination is one that the local governing body makes in the context of public health, general welfare and safety concerns. Simply put, the question becomes – does the condition of the property in question fit the definition of abandoned property in Georgia?
Georgia Statutory Provisions Related To Abandonment Of Property
Georgia has a number of statutes that govern the circumstances under which property can be deemed abandoned. For residential rental properties, the statute at O.C.G.A. § 44-7-55 is the governing law, providing for a summary process for landlords to terminate a rental agreement if the tenant is gone and rents are unpaid. Residential Lease Agreements may also provide guidance on defining abandonment. For commercial real estate, O.C.G.A. § 44-14-305 governs disposal of property left behind by a former tenant.
With regard to leases of commercial real estate, O.C.G.A. § 44-14-305 governs situations where a tenant leaves personal property behind after vacating the leased space. It provides that if a tenant abandons or surrenders leased premises or fails to remove his or her property upon termination of the lease, the owner or lessor or his or her agent may remove the property. If the owner does so, he or she must post a notice on the property posted in a conspicuous place on the property that it will be removed or otherwise disposed of unless the tenant redeems it within five days. The new owner may then dispose of the property.
Declaring a Property to be Abandoned
In Georgia, property abandonment is not simply a matter of the owner moving out and leaving the property vacant. The legal process for declaring a property abandoned involves more than just posting a "FOR SALE SIGN" to draw attention to a vacant property. According to Title 44, Chapter 12 of the Official Code of Georgia, a designee or local government can allow a vacant property to be declared abandoned following the procedures thereunder. The process begins when a claimant of an open and notorious vacant dwelling sends a written notice to each owner of record listing the intention of declaring the property to be abandoned. Abandonment is generally declared if no intent to occupy the property is demonstrated by the owner of record or his or her agent within 45 days of the notice. If no response to the notice is received, the next step in the process involves making a determination whether the property has been wisely neglected by the owner. If local building codes are not complied with by the owner after the lapse of 45 days post notice, the property is likely to be found abandoned. Again, if no response is received or a response by the property owner does not contain information that otherwise negates the presumption of abandonment, the property is deemed abandoned. Local authorities will contact the owner with a determination of abandonment in every instance. A public hearing will be held regarding the abandonment within 60 days of commencement of declaration of abandonment.
Common Issues Facing an Owner Of An Abandoned Property
Property owners who possess land that is eventually determined to be abandoned will retain their rights in that property unless they lose them by statute or agreement. As an example, a commercial real estate lender may lose some of its rights in a commercial property and be subject to losses from abandonment of property under a particular type of financing structure actually referred to and defined as "abandonment financing."
However, in the absence of such a loss of rights, a Georgia property owner will often have rights in abandoned property equal to other property transacted and likewise, often rights to recover exploratory costs (to jump into the pit and exit with a productive property). With regard to ownership, any attempted transfer of abandoned property such as the return of an easement or quitclaim deed to the local government or a donation to a qualified nonprofit that has been approved to accept property, will probably not be effective until the property is no longer deemed abandoned. In the eyes of the county tax assessor or taxing authorities, an attempt to donate abandoned property will likewise not be effective until that abandonment status is removed from the property.
Further, with regard to rights for recovering exploratory costs, a property owner will very often have a rights to have abandoned property cleaned up upon discovery or, in the case of continuing property abandonment, upon notice of the abandonment. For instance, a property owner may have a right to obtain an order directing the county to repair or remove structures considered abandoned and compel payment of a portion of the cost of such removal.
Landlords and Tenants and the Issue of Abandonment
Property abandonment laws give guidance to landlords, property managers and tenants on how to interpret their duties and expectations in a Georgia landlord – tenant relationship. Georgia law requires that a tenant notify the landlord/landlord proxy of his/her whereabouts and of a current mailing address. Without that information, he/she risks losing all rights to goods left behind after a termination of the rental agreement. The law assumes that the tenant has deserted the premises after giving legal notice to terminate the rental agreement or after non-payment of rent and that he/she may have left "abandoned" goods behind. "Abandoned" in this context means to give up, discard, relinquish, give over, repudiate or allow to remain unused. See Brandywine Apart. Assocs. V. Couch, 218 Ga. App. 295, 461 S.E.2d 294 (1995). Abandonment in this case is distinct from the "abandonment" of a lease by a landlord or a tenant who either vacates the property and stops paying rent, or terminates the tenancy and moves from the premises before the end of the lease term. The Georgia Abandoned Property laws balance the interest and convenience of the landlord in maintaining the premises for re-lease and of the tenant, who could be left without housing if necessary removal steps do not occur quickly enough. They affect both landlords and tenants. If a tenant has value in property , whether household goods, furniture, or other valuables, then he/she will want to ensure that it is timely removed. Even dismissing a need for "timing," a tenant may have to forego any right to the property if it is left behind. If the lease or rental agreement terminates with the payment of the last month’s rent, or the tenant has abandoned the leased premises, the landlord must do one of two things. If the tenant has left the leased premises with an intention of abandoning it, giving any legal notice required under the lease, the landlord can enter the premises and remove all of the tenant’s property. It then becomes the responsibility of the landlord to dispose of the tenant’s property in any reasonable manner. Title to property abandoned by the tenant is immediately vested in the landlord. If the tenant vacates the last day of the month and has paid rent through the last day, he/she is not deemed to have abandoned the premises, shall be deemed to have terminated the rental agreement effective the first day of the next month following the next monthly rental period, and, like the former abandoned tenant, the landlord may enter the premises and remove all property and dispose of it in any reasonable manner.
Failure to Cure Abandonment of Property
When a property suffers damage and has been vacated by the tenants without properly severing the legal relationship with the owner of the property, the law in Georgia holds the owner responsible for damages to the property. The owner is responsible, he or she cannot avoid the responsibility of bringing the property up to code.
When the owner of the property is not available, the tenant who caused the damage is also liable. This is a legal relationship imposed by the law of Georgia and intended to protect the integrity of the community. Georgia law requires that property owners maintain their property, comply with all applicable ordinances and regulations, and not use the property in a manner which creates a nuisance. O.C.G.A. §§ 41-1-1 and 41-1-2.
Abandonment of property can trigger obligations and liabilities under these statutes. When abandonment has occurred and the owner has failed to bring the property up to code, City officials can, and will, fine the owner of the property for failing to maintain the property. Additionally, liability can arise due to the structure being unfit for human habitation or disorderly; for example, due to rats, infestation, stagnant pools, broken windows, decayed door jams, shingles or roof coverings. Local government restrictions on building and zoning, such as the International Building Code, specify required maintenance measures and provide authority to local government to issue fines and even demolish a structure, if there is a violation.
In the City of Atlanta, an owner who fails to maintain his or her property, is subject to a fine to abate the nuisance caused by the structure.
Special circumstances can involve complications arising where a third party has taken possession of the property under a lease which prohibits the deduction from the rent due for damage, destruction, failure to maintain, and the like.
Owners should remember that these provisions are part of a larger scheme under Georgia law to maintain and keep property in good order. For this reason, the law is protective of maintaining the integrity of a neighborhood and the value of property. Because municipal fines are levied against the owner of record on the City’s property tax roles, for tax purposes the place to look is to who owns the property at the time the code enforcement officer visits the property, for purposes of determining the liability for the fine. A subsequent purchaser who takes an assignment of the lease may hold the predecessor liable for any violation of the lease which occurred during the period of their tenancy.
Abandonment of Property and Remedies
There are certain steps that property owners may take to reduce the likelihood of abandonment by tenants. For example, a landlord may conduct regular property maintenance inspections and require tenants to pay rent in advance, which reduces the likelihood of an eventual eviction action and may in fact lead tenants to decide to remain in a property rather than abandoning it.
If the property is a single family residence, an owner or lessor may avoid abandonment by requiring the tenant or occupant to retain property insurance for the premises, though that would not be a valid condition in a single family dwelling in Georgia. A rental business, on the other hand, should consider the adoption of a policy requiring insurance coverage for the real estate it leases to tenants. Such a requirement will give a rental business greater certainty as to the condition of occupied real estate, and may constitute a basis under this law for prevention of abandonment of a home when no tenants reside there.
An owner may also choose to obtain frequent physical occupancy inspections of their property to determine whether or not the property has been abandoned. Many landlords have taken to installing video surveillance in their rental properties (as permitted by law), or may visit the property to conduct periodic occupied home inspections. If an owner notices that a property appears to be vacant or abandoned, the owner may then take action pursuant to this law (assuming the time requirements are satisfied). Tenants and landlords should review their lease agreement to determine whether occupancy restrictions are permitted by law. In most cases, a tenant cannot be required to reside at a property, but the owner can require that tenants pay their rent in advance or purchase property insurance as a condition to occupancy. These conditions may act as deterrents to abandonment.
Examples Of Abandoned Properties in Georgia
A recent Georgia Supreme Court decision handed down on February 27, 2015, Simpson v. Crump, illustrates the burden on an adverse possessor to understand and follow the requirements of Georgia’s adverse possession law in order to convert an abandoned property to full title ownership. Georgia law requires that adverse possession be commenced under color of title; that the land have been exclusively possessed for seven uninterrupted years; and that the adverse possessor’s occupation be open, exclusive, and visible. (O.C.G.A. §44-6-160). The Court’s decision involved a residential property; however, this legal premise also applies to adverse possession of commercial properties in Georgia.
Effective December 31, 2012, the Georgia Assembly revised the definition of "abandoned property" in the Abandoned Properties Act, which was created to address abandoned condominium projects and renovation of such projects by private developers. Since then, Georgia courts and legislators have been struggling to define "abandoned". A 2014 case clarified that a creditor’s failure to predominate at a claimant’s foreclosure proceeding cannot be the sole basis for determining a property to be abandoned. (Benson v. Evans, 331 Ga. App. 850 (2015)) . In the final days of this past legislative session, new laws were passed on this issue and address legal claims for easement by necessity and adverse possession, along with commercial landlord-tenant relations.
In addition, the Georgia Assembly passed a measure in the latter part of 2014 that gave vagrants certain property rights to land they temporarily reside on and which property owner-occupants believe are abandoned. The legislation required the vagrant to file a formal demand for maintenance, like a demand for power, water and sewer, with the property owner and install utilities on the property within 45 days. The statute allowed vagrants to keep their belongings on abandoned property and maintain a dumpster, storage container, or other vehicle or trailer on the property. Attempts to clarify this law failed to pass the 2015 session of the Georgia Assembly, but it highlighted the need for property owners and landlords to monitor any illegal squatting on their property before peace officers are required to evict tenants for squatter behavior.
Briefly, the law provides that after receiving demand for utility installation, the landowner is not required to provide utility services; however, a landowner who neglects to comply with a written demand is not allowed to declare the property abandoned at the expense of the occupant. A forfeiture of occupancy rights occurs if the vagrant does not comply with the conditions of the statute.