O.C.G.A. § 44-7-70 (2019)

Annotations

JUDICIAL DECISIONS Contents of affidavit. - Former Code 1933, § 61-402 (see O.C.G.A. § 44-7-71) did not require that the affidavit used in applying for a distress warrant aver both nonpayment of rent and removal of goods from the premises; this construction avoids a conflict between former Code 1933, §§ 61-401 and

61-402 (see O.C.G.A. §§ 44-7-70 and 44-7-71) was in keeping with the historical role of the distress warrant, and permits both sections to be read in accordance with their plain meaning. Cobb v. McCrary, 152 Ga. App. 212, 262 S.E.2d 538 (1979). Strict construction. - Law governing pro-

ceedings for distraint for rent must be strictly construed. Williams v. Stancil, 119 Ga. App. 800, 168 S.E.2d 643 (1969). Tenancy required. - Relationship of landlord and tenant, either by express contract or by legal implication, is an essential basis of a distress warrant. Hearn v. Huff, 6 Ga. App. 56, 64 S.E. 298 (1909). Landlord relationship a prerequisite. - Existence of the relationship of landlord and cropper is a prerequisite to enforcing such a lien. South Cent. Farm Credit v. V.T. Properties, Inc., 208 Ga. App. 296, 430 S.E.2d 645 (1993). Equitable estoppel. - Although the doctrine of equitable estoppel cannot create or convey title, the doctrine may be used to establish the existence of a landlord-tenant relationship. Touch Indus., Inc. v. 75 Canton Bus. Park Ltd. Partnership, 202 Ga. App. 548, 415 S.E.2d 40 (1992). Tenant at sufferance is liable for the reasonable rental value of the premises, and may be distrained for rent. Bible v. Allday, 93 Ga. App. 231, 91 S.E.2d 306 (1956). Liability of subtenant to tenant. - One who rents land and sublets the land to a third person stands in the relation of landlord to the subtenant and may have a distress warrant for the landlord’s rent. Harrison v. Guill, 46 Ga. 427 (1872). Effect of subletting. - Landlord has the right to sue out a distress warrant against a tenant for rent due and unpaid, although the landlord may have permitted another

party to use and occupy the premises. Willingham v. Faircloth, 52 Ga. 126 (1874). Rent payable in specifics. - Landlord may collect the landlord’s rent by a distress warrant, even though the rent be payable in specifics, the value of which is not fixed by the contract. Toler v. Seabrook, 39 Ga. 14 (1869). Intent of agricultural tenant as to crops. - Intent and purpose of an agricultural tenant in removing crops grown on the rented premises is immaterial. Wheeler v. Mote, 37 Ga. App. 547, 140 S.E. 904 (1927). Demand of payment. - Landlord may distrain for rent without any previous demand for payment from tenant or without the allegation thereof in affidavit. Buffington v. Hilley, 55 Ga. 655 (1876); Hill v. Reeves, 57 Ga. 31 (1876); McDougal v. Sanders, 75 Ga. 140 (1885). Merchant selling goods. - Merchant may sell and dispose of a considerable amount of the merchant’s stock, including all of a certain class, at a reduced rate and with the intention of not replacing these goods, even though the value of the stock is thereby greatly reduced, without being subject to a distress for rent under the part of this statute relative to tenants seeking to remove their goods from the premises. Estill v. Savannah Bank & Trust Co., 138 Ga. 607, 75 S.E. 659 (1912) (see O.C.G.A. § 44-7-71). Cited in Davis v. State, 147 Ga. App. 107, 248 S.E.2d 181 (1978); D. Jack Davis Corp. v. Karp, 175 Ga. App. 482, 333 S.E.2d 685 (1985).

RESEARCH REFERENCES Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 591. C.J.S. - 52A C.J.S., Landlord and Tenant, § 1275 et seq. ALR. - Landlord’s lien or right of distress on property sold to tenant on conditional sale, 45 ALR 949. Validity and effect of acceleration clause in lease or bailment, 58 ALR 300; 128 ALR 750.

Right of distraint for taxes which tenant has agreed to pay, 88 ALR 884. Doctrine of breach by anticipatory repudiation of contract as applicable to lease, 137 ALR 432. Landlord’s remedy by way of distress or lien on defaulting tenant’s property on leased premises as including right to collect for all unpaid utility expenses, 99 ALR3d 1100.