Public policy.

- General Assembly has consistently expressed the public policy of this state as one in favor of imposing upon the landlord liability for damages to others from defective construction and failure to keep the landlord's premises in repair. The expressed public policy in favor of landlord liability is matched by an equally strong and important public policy in favor of preventing unsafe residential housing. Thompson v. Crownover, 259 Ga. 126, 381 S.E.2d 283 (1989).

Subsection (b) of O.C.G.A. § 44-7-2 forbids landowners from avoiding the duty to make repairs and improvements or the duties created by housing codes. Gresham v. Atlanta Gas Light Co., 193 Ga. App. 841, 389 S.E.2d 502 (1989), rev'd on other grounds, 260 Ga. 391, 394 S.E.2d 345 (1990).

Certainty and definiteness.

- Parol contract sought to be enforced as within some exception to the statute of frauds must be certain and definite in all essential particulars. Norris v. Downtown LaGrange Dev. Auth., 151 Ga. App. 343, 259 S.E.2d 729 (1979).

Executory contract may be parol.

- Contract establishing the relation of landlord and tenant for one year, though made before the year begins, may be in parol. Steininger v. Williams, 63 Ga. 475 (1879); Gay v. Peak, 5 Ga. App. 583, 63 S.E. 650 (1909); Ridgway v. Bryant, 8 Ga. App. 564, 70 S.E. 28 (1911); Render v. Harris, 25 Ga. App. 302, 103 S.E. 179 (1920), later appeal, 26 Ga. App. 741, 107 S.E. 283 (1921); Butler v. Godley, 51 Ga. App. 784, 181 S.E. 494 (1935); Roland v. Floyd, 53 Ga. App. 282, 185 S.E. 580 (1936).

Unsigned lease ineffective.

- When a two-year lease is not signed by the lessor, even though signed by the lessee in possession, the lease is inoperative as such. Lewis v. Floyd, 126 Ga. App. 520, 191 S.E.2d 291 (1972).

Liability for statutory defect.

- Tenant correctly asserted that although defect was obvious when the tenant took possession of the apartment, recovery was not necessarily barred when the defect was in violation of duty created by applicable statute or administrative regulation stipulated in O.C.G.A. § 44-7-2(b)(3), such that the trial court erred in granting landlord's motion for summary judgment. Bastien v. Metropolitan Park Lake Assocs., 209 Ga. App. 881, 434 S.E.2d 736 (1993).

Storage contract, requiring the lessee to provide all insurance on stored possessions, was not a contract for "the use or rental of real property as a dwelling place," within the meaning of subsection (b) of O.C.G.A. § 44-7-2. Whipper v. McLendon Movers, Inc., 188 Ga. App. 249, 372 S.E.2d 820 (1988).

Part performance.

- Parol contract for the rent of lands for a period of five years is invalid and will not have the effect of creating a tenacy for longer than one year in absence of such part performance of the contract as will take the contract out of the statute of frauds. Carl v. Hansbury, 67 Ga. App. 830, 21 S.E.2d 302 (1942).

Part performance insufficient.

- Reliance upon the statements and representations of a landlord, prompting a tenant to purchase business coupled with the tenant's possession of the premises and payment of rent, does not constitute sufficient part performance to remove a parol lease agreement from the strictures of this statute. Norris v. Downtown LaGrange Dev. Auth., 151 Ga. App. 343, 259 S.E.2d 729 (1979) (see O.C.G.A. § 44-7-2).

Authority of agent.

- Contracts creating the relation of landlord and tenant for any time exceeding one year must be in writing, and when executed by an agent, the authority of the agent to execute the contract must likewise be in writing. Butler v. Godley, 51 Ga. App. 784, 181 S.E. 494 (1935).

Renewal of lease for more than one year.

- Lease for more than a year cannot be renewed except in writing. Hooks v. Lease, 68 Ga. App. 850, 24 S.E.2d 601 (1943).

Purported lease renewal was void and inoperative since there was no writing as required by the statute of frauds to authorize the exercise of an option to renew the lease for another three-year term. Brookhill Mgt. Corp. v. Shah, 197 Ga. App. 305, 398 S.E.2d 290 (1990).

Parol renewal for one year valid.

- Evidence authorized a finding that after the expiration of the original written lease between the parties a new parol contract was entered into by the parties for the rent of the property for another year which was valid. King v. Patillo, 19 Ga. App. 59, 90 S.E. 1033 (1916).

Automatic renewal.

- Fact that a lease provides that the lease would be automatically renewed from year to year in the event the tenant did not give the notice required to the contrary does not necessarily make it a lease for longer than one year. Butler v. Godley, 51 Ga. App. 784, 181 S.E. 494 (1935).

Disaffirming executory parol contract.

- Valid executory parol contract for the rent of land for the ensuing year for an agreed price cannot be disaffirmed by the landlord before the time the contract is to take effect on the ground that no part of the contract has been performed and that neither party has acted to the party's prejudice because of it, without subjecting oneself to an action for damages. Roland v. Floyd, 53 Ga. App. 282, 185 S.E. 580 (1936).

Instructions.

- In a negligence action by a tenant against the tenant's landlord for compensation for injuries resulting from a rat bite, the trial court erred in instructing the jury that the landlord could not avoid the landlord's duty to repair the property absent evidence of the landlord's negligence. Valdosta Hous. Auth. v. Finnessee, 160 Ga. App. 552, 287 S.E.2d 569 (1981).

Recovery of damages.

- In order to recover, a tenant is required to show not only that the landlord breached the landlord's statutory duty to keep the premises in repair, but that such breach was the proximate cause of the tenant's injury. Brown v. RFC Mgt., Inc., 189 Ga. App. 603, 376 S.E.2d 691 (1988).

Cited in Springfield Fire & Marine Ins. Co. v. Price, 132 Ga. 687, 64 S.E. 1074 (1909); Tatum v. Padrosa, 24 Ga. App. 259, 100 S.E. 653 (1919); Candler v. Smyth, 168 Ga. 276, 147 S.E. 552 (1929); Killian v. Cherokee County, 169 Ga. 313, 150 S.E. 158 (1929); Heaton v. Fulton Nat'l Bank, 46 Ga. App. 773, 169 S.E. 216 (1933); Blanchard & Calhoun Realty Co. v. Comer, 185 Ga. 448, 195 S.E. 420 (1938); Neely v. Sheppard, 185 Ga. 771, 196 S.E. 452 (1938); Lamons v. Good Foods, Inc., 195 Ga. 475, 24 S.E.2d 678 (1943); Meeks v. Adams La. Co., 49 F. Supp. 489 (S.D. Ga. 1943); Citizens Oil Co. v. Head, 201 Ga. 542, 40 S.E.2d 559 (1946); Deriso v. Castleberry, 202 Ga. 174, 42 S.E.2d 356 (1947); Carruth v. Carruth, 77 Ga. App. 131, 48 S.E.2d 387 (1948); Cooper v. Vaughan, 81 Ga. App. 330, 58 S.E.2d 453 (1950); Moon v. Stone Mt. Mem. Ass'n, 223 Ga. 696, 157 S.E.2d 461 (1967); Smith v. Top Dollar Stores, Inc., 129 Ga. App. 60, 198 S.E.2d 690 (1973); Blease v. Blease, 238 Ga. 651, 235 S.E.2d 21 (1977); Hill v. Hill, 143 Ga. App. 549, 239 S.E.2d 154 (1977); Opportunities Industrialization Ctr. of Atlanta, Inc. v. Whiteway Neon Ad, Inc., 146 Ga. App. 871, 247 S.E.2d 494 (1978); General Hosps. of Humana v. Jenkins, 188 Ga. App. 825, 374 S.E.2d 739 (1988); Evans v. Richardson, 189 Ga. App. 751, 377 S.E.2d 521 (1989); Thompson v. Crownover, 259 Ga. 126, 381 S.E.2d 283 (1989); Roth v. Wu, 199 Ga. App. 665, 405 S.E.2d 741 (1991); Gaffney v. EQK Realty Investors, 213 Ga. App. 653, 445 S.E.2d 771 (1994); Fields v. Lanier, 294 Ga. App. 355, 670 S.E.2d 145 (2008).

Property not to be used as dwelling place.

- While a landlord may not avoid in any lease of real property as a dwelling place any of the requirements set forth in Arts. 3 and 4 of this chapter, a landlord may contract to avoid these statutory requirements when renting property which is not to be used as a dwelling place. Colonial Self Storage of S.E., Inc. v. Concord Properties, Inc., 147 Ga. App. 493, 249 S.E.2d 310 (1978).

Landlord was entitled to rely on default provisions of lease of residence for commercial purposes in refusing tender of past due rent and in taking action to dispossess appellant, and appellant was not entitled to defenses of O.C.G.A. § 44-7-50 et seq., having waived those provisions in the lease. Eason Publications, Inc. v. Monson, 163 Ga. App. 370, 294 S.E.2d 585 (1982).

Warranty of good repair.

- Landlord's implied warranty that the rented premises were in good repair at the time the premises were rented cannot be defeated by an exculpatory provision in the lease. Country Club Apts., Inc. v. Scott, 246 Ga. 443, 271 S.E.2d 841 (1980).

Houseboat not alleged to be dwelling place.

- When no contention was made in a houseboat lessee's action that the slips or spaces in the marina, or even the houseboats docked there, were to be used as dwelling places, the landlord may contract to avoid the statutory requirements of former Code 1933, Ch. 61-3 or 61-4 (see O.C.G.A. Art. 3 or 4, Ch. 7, T. 44). Wilkerson v. Chattahoochee Parks, 244 Ga. 472, 260 S.E.2d 867 (1979).

Exculpatory clause void as against public policy.

- Exculpatory and indemnity provision in commercial lease providing that "lessee hereby releases lessor from any and all damages to both person and property and will hold the lessor harmless from such damages during the terms of this lease" was void as against public policy. Barnes v. Pearman, 163 Ga. App. 790, 294 S.E.2d 619 (1982), aff'd, 250 Ga. 628, 301 S.E.2d 647 (1983).

Liability for wrongful death.

- Exculpatory clauses in residential lease would not relieve landlord of liability for wrongful death of tenant. Cain v. Vontz, 703 F.2d 1279 (11th Cir. 1983).

Insurance requirement.

- Provision in a lease agreement that imposed upon a tenant a condition that the tenant purchase insurance to protect oneself against the tenant's landlord's negligence, and another provision that purported to bar the tenant's recovery in a negligence case because of the tenant's failure to purchase such insurance, were both void as against public policy as the provisions clearly avoided the "rights, duties, or remedies" contained in O.C.G.A. §§ 44-7-13 and44-7-14. Schuster v. Plaza Pac. Equities, Inc., 588 F. Supp. 61 (N.D. Ga. 1984).

Editor's notes.

- Georgia Laws 1976, p. 1372, deleted from present subsection (a), "and if made for a greater time shall have the effect of a tenancy at will."

In general.

- When an oral lease agreement for a definite term exceeds one year, the agreement creates a tenancy at will. Cody v. Quarterman, 12 Ga. 386 (1852); Hooper, Hough & Force v. Dwinnell, 48 Ga. 442 (1873); Abbott v. Padrosa, 136 Ga. 278, 71 S.E. 419 (1911); Beveridge v. Simmerville, 26 Ga. App. 373, 106 S.E. 212 (1921); Sikes v. Carter, 30 Ga. App. 539, 118 S.E. 430 (1923); City Council v. Henry, 92 Ga. App. 408, 88 S.E.2d 576 (1955); Norris v. Downtown LaGrange Dev. Auth., 151 Ga. App. 343, 259 S.E.2d 729 (1979).

Creation of tenancy at will.

- Tenancies at will in Georgia may be created by express contract, by force of statute, when a contract creating the relationship of landlord and tenant is made in parol for a greater time than one year, and the tenancy is to be treated as one at will, or by implication when there was no original express contract for a definite term. Stepp v. Richman, 75 Ga. App. 169, 42 S.E.2d 773 (1947).

Section inapplicable to written lease.

- Statute is not applicable when there was a written lease under which the defendant held and the lease does not create a tenancy at will. King & Prince Surf Hotel, Inc. v. McLendon, 74 Ga. App. 805, 41 S.E.2d 556 (1947) (see O.C.G.A. § 44-7-2).

Part performance under void lease.

- Although a parol lease may be void under the statute of frauds, a tenancy at will is nevertheless created when the tenant goes into possession or pays rent. Western Union Tel. Co. v. Fain & Parrott, 52 Ga. 18 (1874); Weed v. Lindsay & Morgan, 88 Ga. 686, 15 S.E. 836, 20 L.R.A. 33 (1892); Hayes v. City of Atlanta, 1 Ga. App. 25, 57 S.E. 1087 (1907); Mendel v. C.L. Barrett & Son, 32 Ga. App. 581, 124 S.E. 107 (1924); Merry v. Georgia Big Boy Mtg., Inc., 135 Ga. App. 707, 218 S.E.2d 694 (1975).

Part performance under tenancy at will.

- When an oral agreement creates a tenancy at will, part performance does not render the agreement valid and enforceable as a lease for years. Nicholes v. Swift, 118 Ga. 922, 45 S.E. 708 (1903); Norris v. Downtown LaGrange Dev. Auth., 151 Ga. App. 343, 259 S.E.2d 729 (1979).

Term depending upon contingency.

- When the term of the lease was indefinite, depending upon a contingency, and could not extend beyond a year, the plaintiff was a tenant at will. Anthony Shoals Power Co. v. Fortson, 138 Ga. 460, 75 S.E. 606 (1912).

Unsigned lease.

- When the tenant was to rent land for a term of five years but the landlord failed to sign the lease as modified by the tenant, but the tenant entered and paid notes for rent and did the same the following year, only a tenancy at will was created. Beasley v. Lee, 155 Ga. 634, 117 S.E. 743 (1923).

That the tenant is in possession under a written lease for more than one year, signed only by the landlord, is immaterial when the landlord sells the property to a third party who seeks to evict the tenant on the ground that the lease is void, and that the tenant is a tenant at will. Blanton v. Moseley, 133 Ga. App. 144, 210 S.E.2d 368 (1974).

Agent without authority.

- Since an agent's authority to sign a sealed contract must be in writing, the making of a lease for a longer term than one year by the agent is void and hence an entering of the principal under such a contract creates a tenancy at will. Hayes v. City of Atlanta, 1 Ga. App. 25, 57 S.E. 1087 (1907).

C.J.S.

- 51C C.J.S., Landlord and Tenant, § 2.

ALR.

- Parol-evidence rule as applied to lease, 25 A.L.R. 787; 88 A.L.R. 1380; 151 A.L.R. 279.

Effect of nonhabitability of leased dwelling or apartment, 29 A.L.R. 52; 34 A.L.R. 711.

Rights of lessee who relets for entire term as against sublessee or person claiming under latter, 32 A.L.R. 1429.

Nature of occupancy of person occupying premises of employer as part of compensation, 39 A.L.R. 1145.

Right to recover exaction by lessor as condition of consent to assignment or sublease, 40 A.L.R. 553.

Landlord's responsibility to third persons for conditions created during tenancy as affected by renewal of the lease, or a new lease subject to the original lease, 49 A.L.R. 1418.

Period covered by lessee's, sublessee's or assignee's covenant to pay taxes or assessments, 97 A.L.R. 931.

When landlord's reletting, or efforts to relet, after tenant's abandonment or refusal to enter, deemed to be acceptance of surrender, 110 A.L.R. 368.

When lease deemed to show intention that an assignment thereof shall relieve the lessee from further liability, contrary to the general rule in that regard, 110 A.L.R. 591.

Rights and remedies of tenant who takes possession of land under agreement in violation of statute of frauds, 119 A.L.R. 1225.

Status as licensee or lessee of one in occupation of land in anticipation of the making or execution of a lease, 123 A.L.R. 700.

Option for renewal of lease or for purchase as conditional upon optionor's purpose to lease or sell property, 127 A.L.R. 894.

Option in lease for renewal or purchase as affecting rights and obligations in respect of sublease, 127 A.L.R. 948.

Validity, construction, and enforceability of provision of lease creating or reserving option or election for future enlargement, reduction, or other variation as regards the premises to be occupied by tenant, 129 A.L.R. 772.

Right of lessee to equitable relief against forfeiture for breach of conditions as affected by lessor's giving a lease to or entering into other contractual obligations with a third person, 166 A.L.R. 807.

Right of owner of housing development or apartment houses to restrict canvassing, peddling, solicitation of contributions, etc., 3 A.L.R.2d 1431.

Construction and application of provision in lease under which landlord is to receive percentage of lessee's profits or receipts, 38 A.L.R.2d 1113; 58 A.L.R.3d 384.

Doctrine of part performance with respect to renewal option in lease not complying with statute of frauds, 80 A.L.R.2d 425.

Effect, on nonsigner, of provision of lease exempting landlord from liability on account of condition of property, 12 A.L.R.3d 958.

Liability of lessee who refuses to take possession under executed lease or executory agreement to lease, 85 A.L.R.3d 514.

Recovery of expected profits lost by lessor's breach of lease preventing or delaying operation of new business, 92 A.L.R.3d 1286.

Tenant's agreement to indemnify landlord against all claims as including losses resulting from landlord's negligence, 4 A.L.R.4th 798.

Sufficiency of provision of lease to effect second or perpetual right of renewal, 29 A.L.R.4th 172.

Children's day-care use as violation of restrictive covenant, 29 A.L.R.4th 730.

Applicability of exculpatory clause in lease to lessee's damages resulting from defective original design or construction, 30 A.L.R.4th 971.

Provision in lease as to purpose for which premises are to be used as excluding other uses, 86 A.L.R.4th 259.

What constitutes tenant's holding over leased premises, 13 A.L.R.5th 169.