TITLE 44 PROPERTY

Section 7. Landlord and Tenant, 44-7-1 through 44-7-119.

ARTICLE 2 SECURITY DEPOSITS

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.

Within 30 days after obtaining possession of the premises as provided in subsection (b) of Code Section 44-7-33, 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 or her 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 identifying the exact reasons for the retention thereof, which shall include the comprehensive list of damages prepared as required by Code Section 44-7-33, if the reason for retention is based on damages to the premises. When such 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 such 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 that the landlord attempts to mitigate the actual damages.
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.

(Code 1933, § 61-605, enacted by Ga. L. 1976, p. 1372, § 6; Ga. L. 1982, p. 3, § 44; Ga. L. 2018, p. 969, § 3/HB 834.)

The 2018 amendment, effective July 1, 2018, in subsection (a), substituted "Within 30 days after obtaining possession of the premises as provided in subsection (b) of Code Section 44-7-33," for "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," at the beginning of the first sentence, inserted "or her" near the end of the second sentence, substituted the present provisions of the third and fourth sentences for the former provisions, which read: "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.", in the fifth sentence, substituted "such" for "the" in the middle and substituted "first-class" for "first class" near the end, and inserted "that" near the end of the last sentence.

JUDICIAL DECISIONS

Applicability.

- While Ga. L. 1976, p. 1372, § 6 (see O.C.G.A. § 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 Ga. L. 1976, p. 1372, § 6. Kimber v. Towne Hills Dev. Co., 156 Ga. App. 401, 274 S.E.2d 620 (1980).

When there was no retention of the defendant's security deposit, plaintiffs had no obligation to provide, and could not have provided, a statement giving the reasons for retention. Travelers Ins. Co. v. Linn, 235 Ga. App. 641, 510 S.E.2d 139 (1998).

No forfeiture when written statements not required.

- When a landlord does not retain a security deposit and is therefore not required to provide written statements under O.C.G.A. § 44-7-33 and44-7-34, the landlord's failure to do so cannot work a forfeiture of the right to sue the tenant for damages to the property under O.C.G.A. § 44-7-35(b). Travelers Ins. Co. v. Linn, 235 Ga. App. 641, 510 S.E.2d 139 (1998).

Landlord's written notification of the landlord's intent to retain the tenant's security deposit timely mailed to the tenant at the tenant's last known address was sufficient to comply with the requirement that the landlord notify the tenant within one month of the date the apartment was surrendered that the landlord would be retaining the security deposit; the tenant's claim of never receiving such written notification was without merit as the applicable statute did not require that the notice actually be received in order to allow the landlord to retain the deposit. Cannon v. Wesley Plantation Apts., 256 Ga. App. 244, 568 S.E.2d 137 (2002).

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

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