Category: Landlords/Renters

Langley: Important New Personal Injury Case

Langley v. MP Spring Lake, LLC, A18A0193 (May 1, 2018), just issued by the Georgia Court of Appeals, may have a big impact on many future Georgia personal injury cases. Langley involves a residential landlord-tenant relationship in which a tenant sued her landlord for injuries more than a year after the injuries occurred. Normally, in Georgia, an injured party has two years to file a personal injury lawsuit. However, in this case, the landlord moved to dismiss the case because the lease provided only one year to sue the landlord.  This is the exact language in the lease:

Limitation on Actions. To the extent allowed by law, Resident also agrees and understands that any legal action against Management or Owner must be instituted within one year of the date any claim or cause of action arises and that any action filed after one year from such date shall be time barred as a matter of law.

Focusing on the word any, the Court of Appeals ruled that any legal action included not only breach of contract claims but also personal injury claims. Thus, the lease trumped Georgia’s statute of limitations. The Court reasoned that parties should be free to enter into contracts without interference from the courts.

At Gomez & Golomb, we practice personal injury and real estate litigation. Thus, for us, Langley cuts both ways. It’s bad for our personal injury clients, but good for our real estate and corporate clients. From now on, in personal injury cases, we will be looking even more closely at applicable contracts for language that may limit injury claims. For our real estate and corporate clients, we will be advising them that Langley opens the door to include terms in their contracts that limit liability.

Bankruptcy: repeat filings

A question we get frequently, especially after a debtor files a second or third bankruptcy as a delay strategy, is just how many times can a debtor get away with filing for bankruptcy? We refer to these folks, not so affectionately, as “serial filers.” While not perfect, there are some restrictions for debtors filing multiple bankruptcies:

180 days: A debtor can’t file a second bankruptcy case for 180 days if the debtor’s case was dismissed (i.e., the bankruptcy wasn’t completed) for the following reasons: (1) by the court for willful failure of the debtor to abide by orders of the court, or to appear before the court in proper prosecution of the case; or (2) the debtor requested and obtained the voluntary dismissal of the case following the filing of a request for relief from the automatic stay.

Two bankruptcies in one year: When a debtor files a second bankruptcy within one year of the dismissal of the first case, the automatic stay expires 30 days after filing (11 U.S.C. § 362(c)(3)). There’s one exception, which is if the debtor can prove to the court that the second case was filed in good faith (meaning the debtor didn’t file repeatedly to delay collection by a creditor), the court has discretion to extend the automatic stay.

Three bankruptcies in one year: When a debtor files a third bankruptcy within one year of the dismissal of the first case, the automatic stay doesn’t take effect at all upon the third filing (11 U.S.C. § 362(c)(4)).

After successful completion of a bankruptcy (i.e., a discharge): For a Chapter 7 bankruptcy, a debtor is not eligible for a discharge if the debtor received a discharge in another Chapter 7 filed within the prior eight years, or in a Chapter 13 case filed in the prior six years (unless the prior Chapter 13 payment plan either paid 100% of the unsecured claims or paid 70% of the unsecured claims). For a Chapter 13 bankruptcy, a debtor is not eligible for a discharge if the debtor received a discharge in another Chapter 13 case filed in the prior two years, or in a Chapter 7 case filed in the prior four years.

Miscellaneous note: The one-year period for either termination or non-application of the stay begins to run from the date of dismissal of the first case. In a joint case, if only one of the debtors had a prior case dismissed in the year before filing, the automatic stay is affected only as to the debtor with the prior case. Section 362(c) (3) and (4) apply to the acts of a specific debtor rather than joint debtors in the aggregate.

Please call us if you need clarification or have any questions.

Attorney’s Fees in Georgia: Part One

Part 1: Contractual Attorney’s Fees

Virtually without fail, one of the first things our clients ask is whether they’ll be able to recover attorney’s fees from the other side. This is a fair question because it seems wrong to have pay an attorney when the other side has acted improperly or has caused the dispute. While not necessarily intuitive, the default rule, with exceptions, is that each side is responsible for their own attorney’s fees. We’re going to discuss some of the statutes and cases contrary to the default rule–these laws allow the winner of a lawsuit to recover reasonable attorney’s fees.

The most clear cut situation in which the winning party can recover attorney’s fees is when parties have signed a contract that provides for the recovery of  attorney’s fees. For example, a typical provision in a contract might say that “the prevailing party is entitled to attorney’s fees incurred to enforce or collect monies due under the contract.” In these situations, a trial court doesn’t have the authority to alter such an arrangement unless it is prohibited by statute, and the winning party is entitled to reasonable attorney’s fees as a matter of law.

Contractual attorney’s fees were discussed by the Georgia Court of Appeals in Summit At Scarborough Homeowners Association, Inc. v. Williams, A17A1289 (decided November, 16, 2017). In that case, the trial court’s decision to deny a homeowner’s association attorney’s fees related to unpaid association dues was reversed because the association documents, which are considered a contract, provided for the collection of attorney’s fees. Thus, in cases where a contract provides for attorney’s fees, the trial court must award attorney’s fees based upon evidence of the reasonable value of the professional services provided by the attorney.

In the next installment, we’ll discuss what happens when there’s no contractual provision for attorney’s fees, but the opposing party has acted in bad faith.

Cozy: New Internet Service Makes Renting Easier

Cozy, which launched on June 6, 2013, is a new company hoping to make day-to-day issues facing landlords and tenants easier. The company is financed by Google Ventures, among others, meaning odds are in favor of this company succeeding.

Owning rental property is a great long-term investment; likewise, renting is a convenient solution for many who can’t afford or don’t want to buy property. However, as everyone knows, being a landlord or a tenant can come with some headaches.

To start with, for a tenant, finding a place to rent requires filling out several applications, which results in tenants having to provide personal and confidential information to complete strangers. For a landlord, finding a reliable tenant involves chasing down references, expensive background checks, and oftentimes guess work. Cozy aims to solve these issues. Renters create a profile in Cozy containing the personal information required on rental applications (e.g., references and job information). This information is verified through LinkedIn. Landlords can quickly and easily access this data. Once a tenant finds a place (or stops looking), he or she is able to remove access to his or her personal information. This provides greater security than filling out an old-school paper form or online application.

Likewise, landlords are able to create a profile and list of available properties, creating a central repository for tenants looking for rentals.

An important back-end feature offered by Cozy is online payments. No more the “check got lost in the mail” excuses. Using ACH direct debit payments, a renter is able to send money directly to a landlord’s account.

The fee to use this service is borne by the landlords, who are required to pay $9/month for every unit listed. But, if this service works as advertised, we suspect landlords will be glad to pay $9/month for the convenience provided. In order to become a viable option going forward, lots of landlords and tenants will need to sign up for the service. We wish Cozy luck and hope for its success.

At Gomez & Golomb LLC, we’ve been drafting leases, negotiating landlord-tenant disputes, and filing evictions for twenty years. Please call us for a free initial consultation to discuss your commercial or residential landlord-tenant issues.

Landlords’ Responsibility For Injured Third-Parties in Georgia

A recent Georgia Court of Appeals case examines the issue of a landlords’ liability for injuries to a third-party. The case, Forsh v. Williams, A12A2248 (3/20/2013), involved a non-tenant injured by a tenant’s dogs.

The injured party alleged the landlord was negligent and reckless in failing to adequately screen his tenants, failing to enter into an agreement whereby the tenants were prohibited from having and keeping vicious dogs, failing to adequately inspect the premises, and failing to comply with legal requirements under state and federal law for ownership of rental property. The injured party also alleged the landlord failed to keep the premises in repair – as required under OCGA § 44-7-14 – by not installing an appropriate gate on the deck from which the dogs escaped, and failing to install fencing in the yard after knowing of the presence the dogs.

Under Georgia law, to be liable for injuries to third-parties, out-of-possession landlords are responsible to third-parties for defective construction or for failure to keep the premises in repair.

OCGA § 44-7-14, entitled “Tort liability of landlord,” provides: “Having fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.”

As long as landlord fixes defective construction and keeps the property in repair, presumably, the landlord is immune from claims from the third parties. The allegations referenced above, which include screening tenants and taking other proactive steps, go beyond a landlord’s responsibility in OCGA § 44-7-14.

So what did the court of appeals do? The court focused mostly on procedural issues, reversing the trial court and finding the landlord was not entitled to an outright dismissal at an early stage of the litigation. In favor of the landlord, the court ruled against the injured party on her claim under 42 USCS § 1437 et. seq., commonly referred to as Section 8. The injured party alleged landlord failed to comply with Housing Quality Standards requiring adequate infrastructure to keep the dogs confined either on the deck, in a suitable fence, or otherwise. The court of appeals found this federal statute couldn’t be a basis for liability, and an injured party’s claim is limited to OCGA § 44-7-14.

If you have any questions about Georgia landlord liability for injuries, please call us at 404-382-9994. We have twenty years of experience handling these cases.