SGA-EAC cannot give legal advice, but we can make Georgia statutes available to students who are interested in security deposit law.  Below are some Georgia laws on security deposits.  More information is available at the Law Library.

Be sure to read this entire document carefully.  The last section, 44-7-36, exempts some landlords from several regulations.  

44-7-30  Definitions.

As used in this article, the term: (1) "Residential rental agreement" means a contract, lease, or license agreement for the rental or use of real property as a dwelling place. (2) "Security deposit" means money or any other form of security given after July 1, 1976, by a tenant to a landlord which shall be held by the landlord on behalf of a tenant by virtue of a residential rental agreement and shall include, but not be limited to, damage deposits, advance rent deposits, and pet deposits. The term "security deposit" does not include earnest money or pet fees which are not to be returned to the tenant under the terms of the residential rental agreement. CREDIT

(Code 1933, s 61-601, enacted by Ga. L. 1976, p. 1372, s 6; Ga. L. 1982, p. 3, s 44.)

NOTES, REFERENCES, AND ANNOTATIONS

JUDICIAL DECISIONS

The refundability of a "security deposit" is implicit, and the absence of any express agreement as to the refundability of such a deposit is immaterial. Race, Inc. v. Wade Leasing, Inc., 201 Ga. App. 340, 411 S.E.2d 56 (1991).

Cited in Kimber v. Towne Hills Dev. Co., 156 Ga. App. 401, 274 S.E.2d 620  (1980).

RESEARCH REFERENCES

Am. Jur. 2d. -- 49 Am. Jur. 2d, Landlord and Tenant, s 651.

C.J.S. -- 52 C.J.S., Landlord and Tenant, ss 472-476.

Code, 44-7-30 GA ST 44-7-30

44-7-31  Placement of security deposit in trust in escrow account; notice to tenant of account location and number.

Except as provided in Code Section 44-7-32, whenever a security deposit is held by a landlord or his agent on behalf of a tenant, such security deposit shall be deposited in an escrow account established only for that purpose in any bank or lending institution subject to regulation by this state or any agency of the United States government. The security deposit shall be held in trust for the tenant by the landlord or his agent except as provided in Code Section 44-7-34. Tenants shall be informed in writing of the location and account number of the escrow account required by this Code section. CREDIT

(Code 1933, s 61-602, enacted by Ga. L. 1976, p. 1372, s 6.)

JUDICIAL DECISIONS

Action to recover rent not barred by landlord's failure to comply with section. -- Even though a landlord did not comply with the provisions of the security deposit statute, this did not bar him from bringing an action to recover unpaid rent due on a lease contract or for withholding the security deposit for nonpayment of rent. Zakaria v. McElwaney, 174 Ga. App. 149, 329 S.E.2d 310 (1985).

Unverified affidavit. -- The failure to verify an affidavit as provided by law is an amendable defect. Cobb v. McCrary, 152 Ga. App. 212, 262 S.E.2d 538 (1979).

Security deposit not part of the estate in bankruptcy. -- Security deposits received from tenants and placed in accounts seized by the trustee in bankruptcy were held in trust for the benefit of the tenants. Any property held in trust for the benefit of a third party does not become part of the estate in bankruptcy, accordingly, the trustee could not claim and control the funds from the security deposits as property of the estate. Empire Fin. Servs. v. Gingold (In re Real Estate W. Ventures), 170 Bankr. 736 (Bankr. N.D. Ga. 1993).

RESEARCH REFERENCES

Am. Jur. 2d. -- 49 Am. Jur. 2d, Landlord and Tenant, s 65.

C.J.S. -- 52 C.J.S., Landlord and Tenant, s 472.

Code, 44-7-31

44-7-33  Lists of existing defects and of damages during tenancy; right of tenant to inspect and dissent; action to recover security deposit.

(a) Prior to tendering a security deposit, the tenant shall be presented with a comprehensive list of any existing damage to the premises, which list shall be for the tenant's permanent retention. The tenant shall have the right to inspect the premises to ascertain the accuracy of the list prior to taking occupancy. The landlord and the tenant shall sign the list and this shall be conclusive evidence of the accuracy of the list but shall not be conclusive as to latent defects. If the tenant refuses to sign the list, the tenant shall state specifically in writing the items on the list to which he dissents and shall sign such statement of dissent.

(b) Within three business days after the date of the termination of occupancy, the landlord or his agent shall inspect the premises and compile a comprehensive list of any damage done to the premises which is the basis for any charge against the security deposit and the estimated dollar value of such damage. The tenant shall have the right to inspect the premises within five business days after the termination of the occupancy in order to ascertain the accuracy of the list. The landlord and the tenant shall sign the list, and this shall be conclusive evidence of the accuracy of the list. If the tenant refuses to sign the list, he shall state specifically in writing the items on the list to which he dissents and shall sign such statement of dissent. If the tenant terminates occupancy without notifying the landlord, the landlord may make a final inspection within a reasonable time after discovering the termination of occupancy.

(c) A tenant who disputes the accuracy of the final damage list given pursuant to subsection (b) of this Code section may bring an action in any court of competent jurisdiction in this state to recover the portion of the security deposit which the tenant believes to be wrongfully withheld for damages to the premises. The tenant's claims shall be limited to those items to which the tenant specifically dissented in accordance with this Code section. If the tenant fails to sign a list or to dissent specifically in accordance with this Code section, the tenant shall not be entitled to recover the security deposit or any other damages under Code Section 44-7-35, provided that the lists required under this Code section contain written notice of the tenant's duty to sign or to dissent to the list. CREDIT

(Code 1933, s 61-604, enacted by Ga. L. 1976, p. 1372, s 6.)

<General Materials (GM) - References, Annotations, or Tables>

NOTES, REFERENCES, AND ANNOTATIONS

JUDICIAL DECISIONS

Withholding security deposit not barred by noncompliance with security deposit provisions. -- Even though a landlord did not comply with the provisions of the security deposit statute, this did not bar him from bringing an action to recover unpaid rent due on a lease contract or for withholding the security deposit for nonpayment of rent. Zakaria v. McElwaney, 174 Ga. App. 149, 329 S.E.2d 310 (1985).

Cited in Kimber v. Towne Hills Dev. Co., 156 Ga. App. 401, 274 S.E.2d 620  (1980).

RESEARCH REFERENCES

Am. Jur. 2d. -- 49 Am. Jur. 2d, Landlord and Tenant, s 652.

C.J.S. -- 52 C.J.S., Landlord and Tenant, ss 472-476.

Code, 44-7-33 GA ST 44-7-33

44-7-34  Return of security deposit; grounds for retention of part; delivery of statement and sum due to tenant; unclaimed deposit; court determination of disposition of deposit.

(a) Except as otherwise provided in this article, within one month after the termination of the residential lease or the surrender and acceptance of the premises, whichever occurs last, a landlord shall return to the tenant the full security deposit which was deposited with the landlord by the tenant. No security deposit shall be retained to cover ordinary wear and tear which occurred as a result of the use of the premises for the purposes for which the premises were intended, provided that there was no negligence, carelessness, accident, or abuse of the premises by the tenant or members of his household or their invitees or guests. In the event that actual cause exists for retaining any portion of the security deposit, the landlord shall provide the tenant with a written statement listing the exact reasons for the retention thereof. If the reason for retention is based on damages to the premises, such damages shall be listed as provided in Code Section 44-7-33. When the statement is delivered, it shall be accompanied by a payment of the difference between any sum deposited and the amount retained. The landlord shall be deemed to have complied with this Code section by mailing the statement and any payment required to the last known address of the tenant via first class mail. If the letter containing the payment is returned to the landlord undelivered and if the landlord is unable to locate the tenant after reasonable effort, the payment shall become the property of the landlord 90 days after the date the payment was mailed. Nothing in this Code section shall preclude the landlord from retaining the security deposit for nonpayment of rent or of fees for late payment, for abandonment of the premises, for nonpayment of utility charges, for repair work or cleaning contracted for by the tenant with third parties, for unpaid pet fees, or for actual damages caused by the tenant's breach, provided the landlord attempts to mitigate the actual damages.

(b) In any court action in which there is a determination that neither the landlord nor the tenant is entitled to all or a portion of a security deposit under this article, the judge or the jury, as the case may be, shall determine what would be an equitable disposition of the security deposit; and the judge shall order the security deposit paid in accordance with such disposition. CREDIT

(Code 1933, s 61-605, enacted by Ga. L. 1976, p. 1372, s 6; Ga. L. 1982, p. 3, s 44.)

JUDICIAL DECISIONS

Applicability. -- While s 44-7-35(b) clearly bars a landlord from withholding a security deposit to cover damages to the premises or from bringing action against the tenant for damages to the premises if the landlord does not provide the specific written statements, it does not bar the landlord from bringing an action to recover unpaid rent due on the lease contract or from withholding the security deposit for nonpayment of rent as provided in this section. Kimber v. Towne Hills Dev. Co., 156 Ga. App. 401, 274 S.E.2d 620 (1980).

Cited in Chrietzberg v. Kristopher Woods, Ltd., 162 Ga. App. 517, 292 S.E.2d 100 (1982).

RESEARCH REFERENCES

Am. Jur. 2d. -- 49 Am. Jur. 2d, Landlord and Tenant, s 654.

C.J.S. -- 52 C.J.S., Landlord and Tenant, ss 473, 474.

Code, 44-7-34 GA ST 44-7-34

                      Copyright © 1982-1998 by The State of Georgia. All rights reserved.

Current through End of 1998 Reg. Sess.

44-7-35 Remedies for landlord's noncompliance with article.

(a) A landlord shall not be entitled to retain any portion of a security deposit if the security deposit was not deposited in an escrow account in accordance with Code Section 44-7-31 or a surety bond was not posted in accordance with Code Section 44-7-32 and if the initial and final damage lists required by Code Section 44-7-33 are not made and provided to the tenant.

(b) The failure of a landlord to provide each of the written statements within the time periods specified in Code Sections 44-7-33 and 44-7-34 shall work a forfeiture of all his rights to withhold any portion of the security deposit or to bring an action against the tenant for damages to the premises.

(c) Any landlord who fails to return any part of a security deposit which is required to be returned to a tenant pursuant to this article shall be liable to the tenant in the amount of three times the sum improperly withheld plus reasonable attorney's fees; provided, however, that the landlord shall be liable only for the sum erroneously withheld if the landlord shows by the preponderance of the evidence that the withholding was not intentional and resulted from a bona fide error which occurred in spite of the existence of procedures reasonably designed to avoid such errors.

(Code 1933, § 61-606, enacted by Ga. L. 1976, p. 1372, § 6.)

                         <General Materials (GM) - References, Annotations, or Tables>
 

                              NOTES, REFERENCES, AND ANNOTATIONS

                                        JUDICIAL DECISIONS

Applicability. -- While subsection (b) clearly bars a landlord from withholding a security deposit to recover damages to the premises or from bringing action against the tenant for damages to the premises if the landlord does not provide the specific written statements, it does not bar the landlord from bringing an action to recover unpaid rent due on the lease contract or from withholding the security deposit for nonpayment of rent as provided in § 44-7-34. Kimber v. Towne Hills Dev. Co., 156
Ga. App. 401, 274 S.E.2d 620 (1980).

Failure to provide defect list works forfeiture. -- In an insurer's subrogation action against a tenant who had negligently caused damage to a home, the landlord's failure to provide the tenant with a list of existing defects and damages to the home as required by § 44-7-33 worked a forfeiture of the insurer's right to recover damages. State Farm Fire & Cas. Co. v. Bajalia, 216 Ga. App. 707, 456 S.E.2d 77 (1995).

Landlord's liability for triple damages. -- Since the landlord was not required to return the security deposit lawfully withheld for nonpayment of rent, he was not liable under subsection (c) for three times the amount of the security deposit, as that is a sanction imposed if security deposits are not returned when there are no damages to the premises, unpaid rent, or other charges for which the deposit may be lawfully retained. Kimber v. Towne Hills Dev. Co., 156 Ga. App. 401, 274 S.E.2d 620 (1980).

Trial court properly awarded treble damages and attorney fees, where the court apparently determined that landlords improperly withheld $305 of tenant's $450 security deposit and the court apparently allowed landlords to retain $145 of tenant's security deposit as rent owing to them. Pleasant v. Luther, 195 Ga. App. 889, 395 S.E.2d 9 (1990).

Tenant's retention of an uncashed security deposit check from the landlord for a period of approximately two weeks pending a scheduled trial date did not manifest an acceptance of it in satisfaction of his claim for treble damages, where the tenant did not acknowledge receipt and retention of the check and had promptly indicated his rejection of the settlement offer by filing
an objection to proposed dismissal of the case. Mehavier v. Tahamtan, 198 Ga. App. 807, 403 S.E.2d 92 (1991).

Evidence as to reasonable attorney's fees required. -- By filing a motion requesting the court to award attorney fees under this section, defendant waived her right to a jury trial on this issue; but where it was clear from the trial court's order that the court failed to hear any evidence on this issue, the court was directed to hear evidence as to reasonable attorney fees. Jackson v. Patton, 157 Ga. App. 410, 277 S.E.2d 769 (1981).

Attorney's fees denied where proof was inadequate. -- Denial of attorney fees in the case of an award of damages due to a landlord's failure to return a tenant's security deposit was appropriate where the evidence was inadequate to show what portion of the fees was allocable to the damages award. Augusta Tennis Club, Inc. v. Leger, 186 Ga. App. 440, 367 S.E.2d 263 (1988).

Attorney's fees properly awarded. -- In a suit for return of a security deposit, the jury's award of treble damages to the tenant made clear its finding of intentional withholding and, thus, the trial court could not deny the tenant an award of attorney's fees. Preece v. Turman Realty Co., 228 Ga. App. 609, 492 S.E.2d 342 (1997).

Cited in Chrietzberg v. Kristopher Woods, Ltd., 162 Ga. App. 517, 292 S.E.2d 100 (1982); McKay v. Nally, 173 Ga. App. 372, 326 S.E.2d 560 (1985).

                                      RESEARCH REFERENCES

Am. Jur. 2d. -- 49 Am. Jur. 2d, Landlord and Tenant, § 651.

C.J.S. -- 52 C.J.S., Landlord and Tenant, § 474.

Code, 44-7-35

GA ST 44-7-35

44-7-36  Certain rental units exempt from article.

Code Sections 44-7-31, 44-7-32, 44-7-33, and 44-7-35 shall not apply to rental units which are owned by a natural person if such natural person, his or her spouse, and his or her minor children collectively own ten or fewer rental units; provided, however, that this exemption does not apply to units for which management, including rent collection, is performed by third persons, natural or otherwise, for a fee. CREDIT

(Code 1933, s 61-607, enacted by Ga. L. 1976, p. 1372, s 6.)

JUDICIAL DECISIONS

Cited in McKay v. Nally, 173 Ga. App. 372, 326 S.E.2d 560 (1985).

Code, 44-7-36 GA ST 44-7-36