Derivation of section.

- See Lenney v. Finley, 118 Ga. 718, 45 S.E. 593 (1903) (see O.C.G.A. § 44-7-5).

Statute is a rule of evidence as to what proof will authorize the implication of the relation of landlord and tenant and a consequent implied obligation to pay rent. Lathrop v. Standard Oil Co., 83 Ga. 307, 9 S.E. 1041 (1889); Lenney v. Finley, 118 Ga. 718, 45 S.E. 593 (1903) (see O.C.G.A. § 44-7-5).

Nature of relationship required.

- Distress for rent will lie only if the relation of landlord and tenant exists between the parties. Cohen v. Broughton, 54 Ga. 296 (1875); Lathrop v. Standard Oil Co., 83 Ga. 307, 9 S.E. 1041 (1889); Cleveland v. Watson, 51 Ga. App. 37, 179 S.E. 586 (1935).

Statute is inapplicable if entry was not under the plaintiff or if the possession is adverse to the plaintiff. Atlanta, K. & N. Ry. v. McHan, 110 Ga. 543, 35 S.E. 634 (1900); Lenney v. Finley, 118 Ga. 718, 45 S.E. 593 (1903); New v. Quinn, 31 Ga. App. 102, 119 S.E. 457 (1923) (see O.C.G.A. § 44-7-5).

Possession adverse to landlord.

- When the entry is under one holding adversely to another, the latter is not the landlord of the tenant. Sims v. Price, 123 Ga. 97, 50 S.E. 961 (1905).

Obligation to pay reasonable rent implied.

- When one enters into possession of the premises of another under the relation of a tenant, and no amount of compensation is agreed upon, the law will imply an undertaking to pay such as will be fair and reasonable. Rome R.R. v. Chattanooga, R. & C.R.R., 94 Ga. 422, 21 S.E. 69 (1894); Taylor v. Coney, Lovejoy & Co., 101 Ga. 655, 28 S.E. 974 (1897).

Termination of gratuitous tenancy at will.

- When a property owner gave notice to the tenant that the gratuitous tenancy at will was terminated, and there was evidence of the reasonable rental value, the owner was entitled to rental payments beginning 60 days after the demand for possession. Auburn Maranatha Inst., Inc. v. Georgia Korean Church, 232 Ga. App. 415, 501 S.E.2d 846 (1998).

Vendor remaining in possession.

- When one party conveys land to another, and it is agreed between the parties that the vendor shall remain in possession until a fixed time when the vendor shall surrender possession to the vendee, the relation of landlord and tenant exists between the two by implication under this statute, the vendor being tenant. Prichard v. Tabor, 104 Ga. 64, 30 S.E. 415 (1898); Hand v. Matthews, 153 Ga. 75, 111 S.E. 408 (1922); Chason v. O'Neal, 158 Ga. 725, 124 S.E. 519 (1924) (see O.C.G.A. § 44-7-5).

Security deed given but possession retained.

- One who makes to a creditor for the purpose of securing a debt a deed to land, but retains possession of the land, does not thereby become the tenant either of such creditor or of the creditor's vendee. Finn v. Reese, 36 Ga. App. 591, 137 S.E. 574 (1927). See also Ray v. Boyd, 96 Ga. 808, 22 S.E. 916 (1895).

Tenant's disclaimer of owner's title.

- If A owns land that is the occupancy of B, the law will imply a liability on the part of B to pay rent for the lands unless B expressly disclaims holding possession under A. Jacks & Bros. v. Mowry, 30 Ga. 143 (1860).

When tenant's possession not interfered with.

- Even if title is not shown, a landlord is still entitled to collect rent from one who enters into possession as the landlord's tenant, when the tenant's possession is not interfered with by superior title. Goodman v. Friedman, 117 Ga. App. 475, 161 S.E.2d 71, cert. dismissed, 224 Ga. 497, 162 S.E.2d 295 (1968).

Lease in third party excludes presumption of relationship.

- When it appears that a third party has the right, under an express lease contract with the plaintiff, to the use and occupancy of the premises during the time for which rent is claimed against the defendant, there is no room for the implication that the relation of landlord and tenant exists between the plaintiff and the defendant. Lenney v. Finley, 118 Ga. 718, 45 S.E. 593 (1903).

Rental contract with third party as landlord.

- When there was no proof to establish the relation of landlord and tenant between the parties, and the evidence showed that the defendant held the premises under a contract of rental with a person other than the plaintiff administrator or plaintiff's intestate, no obligation for rent existed. Kaufman v. Treadaway, 40 Ga. App. 274, 149 S.E. 325 (1929).

Vague contract of sale resulting in tenancy at will.

- In a dispossessory action, the trial court correctly found a contract for sale of land to be too vague, indefinite, and uncertain to be enforceable. There being no valid contract for the sale of the property, the trial court's ruling that defendants were tenants at will was not error. Burns v. Pugmire, 194 Ga. App. 898, 392 S.E.2d 62 (1990).

Lessor and third party.

- Lessor of real property has no right of action against a third party for the use and occupation of a portion of the leased premises during the period of the lease and at a time when the lessee was entitled to the possession of the property. Since there is no injury to the freehold, the right of action, if any, is in the lessee. Southern Ry. v. State, 116 Ga. 276, 42 S.E. 508 (1902); Lenney v. Finley, 118 Ga. 718, 45 S.E. 593 (1903).

If, relative to the plaintiff and to the receiver, the defendant was nothing but a trespasser, the relation of landlord and tenant could not have existed between plaintiff and the defendant, or between the defendant and the receiver, by the express terms of this statute. Hearn v. Huff, 6 Ga. App. 56, 64 S.E. 298 (1909) (see O.C.G.A. § 44-7-5).

Purchaser from trustee in bankruptcy.

- When the purchaser of a stock of goods from trustee in bankruptcy continued in possession, no such contract is implied. Stevens v. McCurdy, 124 Ga. 456, 52 S.E. 762 (1905).

Successor of tenant at will.

- Action for use and occupation of land will not lie against successor to tenant at will for entry was not under plaintiff. Atlanta, K. & N. Ry. v. McHan, 110 Ga. 543, 35 S.E. 634 (1900).

Expiration of cropper's contract.

- When contract of cropper had expired, and the defendant had ceased to occupy the premises as a cropper but occupied the premises under a different relationship, the defendant was presumably a tenant. Malone v. Floyd, 50 Ga. App. 701, 179 S.E. 176 (1935).

Effect of reliance on express contract.

- Having elected to rely on an express contract, a party is not entitled to rely on an implied contract. Willis v. Kemp, 130 Ga. App. 758, 204 S.E.2d 486 (1974).

Cited in Sharpe v. Mathews, 123 Ga. 794, 51 S.E. 706 (1905); Roberts v. Roberts, 39 Ga. App. 810, 148 S.E. 606 (1929); Anderson v. Watkins, 42 Ga. App. 319, 156 S.E. 43 (1930); Daniel v. Radford, 47 Ga. App. 282, 170 S.E. 302 (1933); Young v. Wilson, 183 Ga. 59, 187 S.E. 44 (1936); Price v. Bloodworth, 55 Ga. App. 268, 189 S.E. 925 (1937); Stephens v. Pickering, 192 Ga. 199, 15 S.E.2d 202 (1941); Faircloth v. State, 69 Ga. App. 441, 26 S.E.2d 118 (1943); Chamblee-Camp Gordon Water, Light & Power Co. v. Flowers, 70 Ga. App. 45, 27 S.E.2d 234 (1943); Cooper v. Vaughan, 81 Ga. App. 330, 58 S.E.2d 453 (1950); Smith v. Abercrombie, 89 Ga. App. 129, 78 S.E.2d 826 (1953); Bank Bldg. & Equip. Corp. v. Georgia State Bank, 132 Ga. App. 762, 209 S.E.2d 82 (1974).

Am. Jur. 2d.

- 49 Am. Jur. 2d, Landlord and Tenant, § 408.

C.J.S.

- 52A C.J.S., Landlord and Tenant, § 988.

ALR.

- Surrender and acceptance of term as affecting right to recover rent or an obligation given for rent, 18 A.L.R. 957; 58 A.L.R. 906.

Where rent payable, 23 A.L.R. 883.

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

Validity and enforceability of provision for renewal of lease at rental not determined, 30 A.L.R. 572; 68 A.L.R. 157; 166 A.L.R. 1237.

Right to compensation for board furnished to relatives of wife, 36 A.L.R. 677.

Lease of property for sale of liquor in violation of law as affecting right to rent, 42 A.L.R. 1036.

Crop failure as affecting liability for rent, 51 A.L.R. 1291.

Surrender and acceptance of term as affecting right to recover rent or on obligation given for rent, 58 A.L.R. 906.

Tenant's liability for rent subsequent to appointment of receiver in suit or proceeding by landlord or by parties in privity with landlord, 61 A.L.R. 372.

Liability of lessee's assignee to lessor for rent where he abandons possession, 70 A.L.R. 1102.

Claim of lessor or privy against receiver of lessee in respect of leasehold which latter elects not to take over, 84 A.L.R. 892; 111 A.L.R. 556.

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.

Validity, construction, and application of statute or ordinance which precludes recovery of rent in case of occupancy of building which does not conform to building and health regulations, or where certificate of conformity has not been issued, 144 A.L.R. 259.

Seller's, bailor's, lessor's, or lender's knowledge of the other party's intention to put the property or money to an illegal use as defense to action for purchase price, rent, or loan, 166 A.L.R. 1353.

Factors and elements considered in fixing rental for extended or renewal term where removal or extension clause leaves amount of rental for future determination, 6 A.L.R.2d 448.

Vendee's liability for use and occupancy of premises, where vendor disaffirms an unenforceable land contract, 49 A.L.R.2d 1169.

Right of tenant to recover rentals previously paid to one mistakenly believed to be owner of property, 57 A.L.R.2d 350.

Landlord and tenant: constructive eviction based on flooding, dampness, or the like, 33 A.L.R.3d 1356.