O.C.G.A. § 44-7-11 (2019)

Annotations

JUDICIAL DECISIONS Tenant’s duty of care. - Tenant is under a duty to exercise ordinary care and diligence to prevent damage to the rented premises, and such duty is by implication a part of the lease contract. Martin v. Medlin, 81 Ga. App. 602, 59 S.E.2d 519 (1950). Implied covenant. - In a rental contract between a landlord and tenant, a covenant is raised, by implication of law in the absence of express covenants in reference thereto, that the tenant will so use the rented property that no unnecessary or substantial injury shall be done to the property. Martin v. Medlin, 81 Ga. App. 602, 59 S.E.2d 519 (1950). Reasonable use by tenant. - Independently of covenant, a tenant is required to return the premises at the end of the term in substantially the same condition as when received, subject to reasonable use. Martin v. Medlin, 81 Ga. App. 602, 59 S.E.2d 519 (1950). Distinction between permanent and movable fixtures. - Chattels real are considered

as personal property in every respect, if not so annexed and necessarily attached to the freehold as to go along with the freehold in the same path of alienation. In order to make a thing part of the realty by merely annexing, it is necessary that both the thing and the soil to which it is attached should belong to the same owner. McCall v. Walter, 71 Ga. 287 (1883). Trade fixtures. - In the absence of a contract giving the tenant the right so to do, the tenant cannot lawfully remove fixtures annexed to the freehold, which the tenant has placed on leased land. The exception to this rule existed only in the case of trade fixtures under former Civil Code 1895, § 3120 (see O.C.G.A. § 44-7-11). Wright v. DuBignon, 114 Ga. 765, 40 S.E. 747, 57 L.R.A. 669 (1902). While two owners of an aircraft hangar had no formal agreement with the city entitling the owners to extend their stay on city property, and the city could therefore elect

to remove the owners at any time as tenants at will, the owners were obligated to remove any trade fixtures from the landlord’s property, specifically, the hangar, despite the hangar’s size, and at their own expense, upon notification by the city of the expiration of the lease term; moreover, the hangar was such that although the hangar was bolted to the ground, the hangar was done so in such a way that it could be disassembled and rebuilt elsewhere. S.S. Air, Inc. v. City of Vidalia, 278 Ga. App. 149, 628 S.E.2d 117 (2006). Removal of fixtures as ‘‘necessary repairs’’. - Tenants had no right under the general license to make ‘‘necessary repairs’’ to have removed permanent fixtures. Center & Treadwell v. Davis, 39 Ga. 210 (1869). Intention of tenant immaterial. - Servant’s room, metallic gutters attached to the roof of a house, waterpipes laid under the ground by a tenant on leased premises, become, when constructed and attached, a part of the freehold, and cannot be lawfully severed from the land by the tenant against the will of the landlord, even though at the time of their erection the tenant intended to remove them at the expiration of the tenant’s term. Wright v. DuBignon, 114 Ga. 765, 40 S.E. 747, 57 L.R.A. 669 (1902). Agreement by predecessor in title. - Trover suit for possession of buildings will not lie against the purchaser of the land, although such purchaser took with notice of a specific agreement between the plaintiff and the defendant’s predecessor in title that the buildings were to remain personal property and fixtures and be removable. Adams v. Chamberlin, 54 Ga. App. 459, 188 S.E. 550 (1936). Counters and drawers in store permanent. - Counters and drawers in a drug store placed there by the landlord, and rented in their place with the store, are fixtures, which the tenant has no right to remove. Pope v. Gerrard, 39 Ga. 471 (1869).

Pavement. - Fixture permanently attached to the land, such as a pavement, is not removable under the right to remove trade fixtures. Mayor of Savannah v. Standard Fuel Supply Co., 151 Ga. 145, 106 S.E. 178 (1921). Section houses erected by railroad company on premises over which railroad had easement for tracks to assist the railroad in carrying on the railroad’s business could not be removed, after an abandonment of the railroad by the company and the railroad’s insolvency, by a purchaser of all the railroad property, without the franchise, from the receiver having custody of the property. Jackson v. Crutchfield, 184 Ga. 412, 191 S.E. 468 (1937). Trespass by landlord. - When a landlord, without the tenant’s consent and before the expiration of the term, enters upon the rented premises without authority of law and forcibly evicts the tenant and rents the premises to another, and in so doing takes possession of the tenant’s effects, and in moving effects damages the effects, the landlord thereby commits an inexcusable trespass against the tenant; the jury is authorized to find a sum in punitive damages or damages for compensation for the wounded feelings of the tenant. Real Estate Loan Co. v. Pugh, 47 Ga. App. 443, 170 S.E. 698 (1933). Illegal use of property by sign company unauthorized by landlord. - Under O.C.G.A. § 44-7-11, a tenant such as a sign company has no right beyond the use of the land actually conveyed or rented. Furthermore, under O.C.G.A. § 44-7-14, the landlord and neighbor of plaintiffs was not responsible for the tenant’s, the sign company’s, illegal use of the neighbor’s property or airspace. Powell v. Norman Elec. Galaxy, Inc., 255 Ga. App. 407, 565 S.E.2d 591 (2002). Cited in Henderson v. Easters, 178 Ga. App. 867, 345 S.E.2d 42 (1986).

OPINIONS OF THE ATTORNEY GENERAL Condemnation of fixtures. - In a condemnation proceeding in which there exists a landlord-tenant relationship, those fixtures which are physically or constructively made a part of the realty, even those which were placed there by the tenant, are to be consid-

ered as a part of the realty and property of the landowner; the tenant would not be allowed compensation for such fixtures unless the tenant had, by previous agreement, entered into a written agreement with the landlord that these fixtures were to be con-

sidered as personalty of the tenant. The only exception to this rule would be in those cases in which the tenant was engaged in some trade or business and the fixtures in question were used as part of the tenant’s business or trade and could be considered as trade fixtures. 1969 Op. Att’y Gen. No. 69-122.

Condemnation of trade fixtures. - Trade fixtures are considered as property of the tenant; in any condemnation proceeding, the tenant is eligible for relocation moving expenses for trade fixtures. 1969 Op. Att’y Gen. No. 69-122.

RESEARCH REFERENCES Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, §§ 211, 228. C.J.S. - 51C C.J.S., Landlord and Tenant, § 348 et seq. ALR. - Gas range as fixture, 7 ALR 1578. Right of tenant to make alterations in structures on leased premises, 9 ALR 445; 13 ALR 824. Status of one employed by landlord to perform work on premises who enters or remains without consent or against protest of tenant, 10 ALR 715. Change of physical conditions on property of landlord, other than that leased, as affecting the rights and liabilities of landlord and tenant, 12 ALR 160; 38 ALR 1090; 44 ALR 59. Division of the premises by the lessor, or the creation of undivided interests therein, as affecting the enforcement of the lessee’s covenants, 12 ALR 826. Pavement, flooring, platform, walks, and the like as fixtures, 13 ALR 1454. Rights and remedies of tenant who remains in possession of all or part of the premises against landlord for interfering with his possession or enjoyment, 20 ALR 1369; 28 ALR 1333; 64 ALR 900. Duty and liability of farm tenant in respect to live stock leased with farm, 32 ALR 857. Liability for injury to trespassing stock from poisonous substances or other conditions on the premises, 33 ALR 448. Oil or gas or other mineral rights in land as affected by language in conveyance specifying purpose for which the property is to be used, 39 ALR 1340. Rights of cotenants inter se as to timber, 41 ALR 582. Liability of owner of office building or tenement house for loss of or damage to property of tenant due to dishonesty or negligence of owner’s employee, 42 ALR 1335.

Right of third person to enter premises against objection of landlord, 43 ALR 206. Storage tank or other apparatus of gasoline station as fixture, 52 ALR 798; 99 ALR 69. Right of mortgagor or owner of equity of redemption to cut timber, 57 ALR 451. Liability of landlord for interfering with tenants of lessee, 70 ALR 1477. Waste, as between landlord and tenant, as including loss or damages due to act or negligence of third person, 84 ALR 393. Buildings erected by a tenant as ‘‘trade fixtures,’’ 107 ALR 1153. Right to remove fixtures or improvements placed upon property by one holding under lease as affected by renewal or new lease made to him or his successor without reservation of the right to remove, 110 ALR 480. Common-law duty of landlord as regards installation and maintenance of fire equipment, 122 ALR 167. Bowling alleys as fixtures, 123 ALR 690. Refrigerator or refrigerating plant as fixture, 169 ALR 478. Recovery by tenant of damages for physical injury or mental anguish occasioned by wrongful eviction, 17 ALR2d 936. Relative rights and liabilities as between landlord and tenant with respect to keeping of dogs, birds, or other pets, 18 ALR2d 880. Advertising rights on leased premises, 20 ALR2d 940. Landlord’s duty under express covenant to repair, rebuild, or restore, where property is damaged or destroyed by fire, 38 ALR2d 682. Breach of covenant for quite enjoyment in lease, 41 ALR2d 1414. Effect, as between lessor and lessee, of provision in mineral lease purporting to except or reserve a previously granted right of way or other easement through, over, or upon the premises, 49 ALR2d 1191.

Timber rights of life tenant, 51 ALR2d 1374. What constitutes alterations or changes in premises within lease provision permitting making thereof by lessee, 57 ALR2d 963. Implied covenant or obligation of lessor to furnish water or water supply for business needs of the lessee, 65 ALR2d 1313. Measure of damages in landlord’s action for waste against tenant, 82 ALR2d 1106. Liability of landlord for personal injury or death due to inadequacy or lack of lighting on portion of premises used in common by tenants, 66 ALR3d 202. Landlord’s liability for personal injury or death due to defects in appliances supplied for use of different tenants, 66 ALR3d 374. Grazing or pasturage agreement as violative of covenant in lease or provision of statute against assigning or subletting without lessor’s consent, 71 ALR3d 780. Implied covenant or obligation to provide lessee with actual possession, 96 ALR3d 1155. Modern status of rule as to tenant’s rent

liability after injury to or destruction of demised premises, 99 ALR3d 738. Production on one tract as extending term on other tract, where one mineral deed conveys oil or gas in separate tracts for as long as oil or gas is produced, 9 ALR4th 1121. Right to exercise option to renew or extend lease as affected by tenant’s breach of other covenants or condition, 23 ALR4th 908. Landlord and tenant: respective rights in excess rent when landlord relets at higher rent during lessee’s term, 50 ALR4th 403. Validity, construction, and effect of statute or lease provision expressly governing rights and compensation of lessee upon condemnation of leased property, 22 ALR5th 327. Time within which tenant’s right to remove trade fixtures must be exercised, 109 ALR5th 421. Effect, as between landlord and tenant, of lease clause restricting the keeping of pets, 114 ALR5th 443.