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Law Pro
Law Pro, Attorney
Category: Legal
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Experience:  20 years legal practitioner: real estate, collections, estate, civil, business, and criminal law
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I filed a civil suit against my property management company

Resolved Question:

I filed a civil suit against my property management company but the refused to give me the name of the acting agent so I filed against the offending employees and the holding company which was listed in the tax assessors office.

On Nov. 22nd I found out the agent's name and went (upon JustAnswer's advice), to the courthouse and amended the suit to include her since they had not yet answered my complaint. Well--evidently my amendment beat their answer by a few hours because today I received their answer (dated Nov. 22 as well). According to one of their eleven defenses, they stated that I have failed to name the real party in interest...but, according to a JustAnswers attorney "Even if the old property manager does not represent the new owner, if the property manager acted as if it were the agent, then you have a claim against the property manager for breach of warranty of authority, and for fraud" is this true as well with the leasing manager & collection manager who were physically collecting rents from me and harrassing me with erroneous late notices and banging on my door...or am I in trouble?
Submitted: 2 years ago.
Category: Legal
Expert:  Law Pro replied 2 years ago.
OK, what is the basis of your lawsuit?
Customer: replied 2 years ago.
I was living month-to month because my lease had expired. The property was foreclosed upon in August (I had no idea of this). The new owners made their presence known to me by returning my check in September because they wanted me to sign a new lease--which I did. Before I recieved a copy of it they changed their minds and decided to not renew my lease and gave me 7 days move out notice. I did not comply and they began harrassing me, entering my apartment whenever...banging on my door, pretending to lose my check the following month and placing "late rent & warnings of dispossessory warrants" on my door and on one occassion I found a note taped to the inside of my door. THEN they gave me a 30 day's notice by certified mail which I told them they could not do.

My suit is based on the fact that my rental bargain has been devalued and diminished greatly due to the harrassment of these individuals.
Expert:  Law Pro replied 2 years ago.
Please explain "rental bargain". Thanks.
Customer: replied 2 years ago.
The amount of rent that we both agreed was a fair bargain for the quiet, safe and peaceful enjoyment of my premises.
Expert:  Law Pro replied 2 years ago.
They didn't sign the lease did they?
Customer: replied 2 years ago.
Not the new one. No. I am a "hold over" tenant from the previous property management company. My lease had expired in 12/2009 so I became a tenant at will according to Georgia Law. In the interim, they collected four months of the same amount of rent I was paying to the previous owner so...they must have agreed at some point that it was a fair amount AND the amount was going to stay the same on the new lease as well.
Expert:  Law Pro replied 2 years ago.
A "hold-over" tenant is a month-to-month tenant if they pay rent monthly.

Yes, you are correct- according to Georgia law your a tenant-at-will after the expiration of your lease.

To increase your monthly rent after the lease expired - they just had to give you one full month's notice. So if they gave you notice September 1 of a new rental amount - that would not take effect until November.

Yes, a landlord owes a tenant the right to quiet enjoyment of the premises they are renting.

I am confused as to your complaint - what specifically are you asking for as to damages and how did you calculate such?
Customer: replied 2 years ago.
I run an online weight loss business out of my home. I talk to patients all day long--they think I'm sitting in an office. The constant bangings and the false PINK late notices taped to the ouside of my door disturb my quiet, peaceful enjoyment as well as my privacy. The leasing manage came one day (with the 7 day eviction notice) with to big gorilla security guards...when I opened up the door he handed me the notice then stuck his head in my door (past me) looked around and said "nice furniture". I felt threatened by that and took out a renter's insurance policy that same day because I often travel on the weekends and with them coming in and out--I don't know what they might do.

My damages are 2,076.80 of which include court costs, three month's rent plus the cost of the renter's insurance policy...I paid a year in advance and have NEVER felt like I needed it before.
Expert:  Law Pro replied 2 years ago.
You will not be able to recover the cost of the renter's insurance policy.

As to the 3 month's rent - I don't think the judge will award that much. Yes, they might award something - but not the full 3 month's rent.

Quiet enjoyment is a right to the undisturbed use and enjoyment of real property by a tenant or landowner. The right to quiet enjoyment is contained in covenants concerning real estate. Generally a covenant is an agreement between two parties to do or refrain from doing something.

 

Courts read a covenant of quiet enjoyment between the Landlord and Tenant into every rental agreement, or tenancy. Thus a renter, or tenant, has the right to quiet enjoyment of the leased premises regardless of whether the rental agreement contains such a covenant.


In the covenant of quiet enjoyment, the landlord promises that during the term of the tenancy no one will disturb the tenant in the tenant's use and enjoyment of the premises. Quiet enjoyment includes the right to exclude others from the premises, the right to peace and quiet, the right to clean premises, and the right to basic services such as heat and hot water and, for high-rise buildings, elevator service. In many respects the implied covenant of quiet enjoyment is similar to an Implied Warranty of habitability, which warrants that the landlord will keep the leased premises in good repair. For example, the failure to provide heat would be a breach of the implied covenant of quiet enjoyment because the lack of heat would interfere with the tenant's use of the premises and would also make the premises uninhabitable, especially in a cold climate.


So your damages would potentially be the harassment or nuisance they were during your stay at the premises.


You were protected somewhat even though your lease had expired.

On May 20, 2009, when President Obama signed the "Protecting Tenants at Foreclosure Act of 2009." This legislation provided that leases would survive a foreclosure -- meaning the tenant could stay at least until the end of the lease, and that month-to-month tenants would be entitled to 90 days' notice before having to move out (this notice period is longer than any state's non-foreclosure notice period, a real boon to tenants).

An exception was carved out for the buyer who intends to live on the property -- this buyer may terminate a lease with 90 days' notice. Importantly, the law provides that any state legislation that is more generous to tenants will not be preempted by the federal law. These protections apply to Section 8 tenants, too.



So they had the right to notice you to vacate - they only had to give you one month's notice.



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Customer: replied 2 years ago.
Respectfully, XXXXX XXXXX with you. I don't think they have the right to give me 30 days' notice because they have no intention on inhabiting this apartment. It is a complex with well over 200 units--no section 8 allowed...I don't think.
Expert:  Law Pro replied 2 years ago.
It doesn't matter if they want to rent or inhabit it themselves or not - it's THEIR property and they can do with it as they please.

They would have to honor a lease - but you didn't have a lease - you were a month-to-month tenant or a tenant-at-will.


So I legally disagree with you.

Sorry.
Customer: replied 2 years ago.
You disagree with Georgia Statutes?:

Georgia Statutes:
http://law.onecle.com/georgia/44/44-7-7.html
44-7-6.
Where no time is specified for the termination of a tenancy, the law construes it to be a tenancy at will.
44-7-7.
Sixty days´ notice from the landlord or 30 days´ notice from the tenant is necessary to terminate a tenancy at will.
Expert:  Law Pro replied 2 years ago.
I don't disagree with the statutes which are the law - what I don't agree with is your statements.

I agree with the law you posted - those are the statutes.

But they can evict you - that is their right because they own the property and you don't have a lease.


Customer: replied 2 years ago.
I never disagreed with the fact that they can "evict" me that--it is their property and they can do whatever they want with it, is a fact. What I stated to them and now to you is that neither a 7-day nor a 30-day notice is sufficient with respect to the notice required by a landlord who has created a tenancy-by-will according--Georgia Statutes.
Expert:  Law Pro replied 2 years ago.
OK, I agree with you - they need to provide you with a full 60 day notice. Then if you don't vacate at that time they can pursue eviction proceedings.

Customer: replied 2 years ago.
Fair enough. Okay, so the second part of my question concerns the fact that also, yesterday, I recieved in the mail from their attorneys that they were amending the 30 day notice to a 60 day notice. I have already found another place to live and have paid this month's prorated rent (last Friday)...but the apartment is really to small for my furnishings but I felt that I might be in a time crunch so I applied for it.

My question is, if I take these additional 30 days to look for a more suitable apartment for myself, can I add the pro-rated amount of the new apartment's rent that I've already paid if I am not able to obtain a refund for the amount?
Expert:  Law Pro replied 2 years ago.
Sorry for any confusion - you have explained the situation or I now understand.

Now, you asked, "can I add the pro-rated amount of the new apartment's rent that I've already paid if I am not able to obtain a refund for the amount?"

So you are asking that the overlap of rent that you have paid for the new apartment - can you get that back or get a rent reduction from the current landlord?
Customer: replied 2 years ago.
Yes--that is my second question.

My first question was since I named the collection & leasing mgrs along with the holding company (which was the only "agent" listed in the tax assessors office (the unscrupulous tyrants refused to give me the property manager's name) in the suit initially (I found out the Property Manager's name the other day and filed an amendment to ad her), is it true that "Even if the old property manager does not represent the new owner, if the property manager acted as if it were the agent, then you have a claim against the property manager for breach of warranty of authority, and for fraud" and does this apply to the leasing manager & collection manager who were physically collecting rents (acting as the agent(?), from me? Also, doesn't the fact that they didn't notify me that the property ownership had changed hands constitute fraud?
Expert:  Law Pro replied 2 years ago.
Why do you sue the property manager - they are the agents but you should have sued the landlord. If the property manager is the landlord - then you sued the right party.

But given that you didn't have a lease - you should have sued the property owner. The property manager is the owner's agent - but the property owner is ultimately liable.

You are talking about implied authority authority. I think that is a long shot in your case. I think the judge is going to have a problem with that.

You stated, "Also, doesn't the fact that they didn't notify me that the property ownership had changed hands constitute fraud?" That's an argument for them that they weren't their agent - that the property owner should have notified you.

I think this is a very tough case which is usually the situation when a property has changed ownership and even more so when foreclosed upon.
Customer: replied 2 years ago.
I ask because I thought I read in some statute that in the case of a foreclosed property, that the new owner is supposed to give each resident or post their name and contact info in a conspicuous place within 30 days. They never did. I only knew they had new staff when they wanted me to sign a lease...in mid september. I discovered it was foreclosed when I filed the suit and when I went to the tax assessors office to find out who the owner or agent was it listed a holding company (I think it discribed it as some sort of "flow through" company)--they're in MD., and further it only listed a P.O. box. That is why I listed the company, the name of the complex and the two offending employees in the suit. They wouldn't give me the property manager's name
Expert:  Law Pro replied 2 years ago.
When they contacted you to sign a new lease - weren't you on notice of the new ownership?
Customer: replied 2 years ago.
Not at all. In September, I put my rent check in the drop box. About a week later, someone put it in an envelope and I found it taped to the inside of my apartment with a notice stating that my rent had increased and the check was not acceptable. I took the check to the office immediately and that's when they told me that there was a new owner and if I signed a lease they would keep the rent the same amount.
Expert:  Law Pro replied 2 years ago.
You didn't have to accept their placing you in a position of duress under those circumstances.

It would appear and they sound like a very unethical and illegal operation certainly.

The problem is - your damages.

Yes, they haven't complied with the law.

However, you have had the benefit of staying and living there.

Your argument is - them being a nuisance and not complying with the law in any way shape or form.

Damages?

Then harassing you and breaching your right to quiet enjoyment - that's not an amount certain. That's a subjective opinion.

So you need to outline any and all legal violations they made and unethical conduct on their part.


I can't say for certain just what your damages are. It's not a 2 + 2 = 4 situation.





Customer: replied 2 years ago.
I understand. So then to recap, the following is my list of their illegal violations...correct me if I'm wrong:

1. Is not disclosing the new owners name/contact info fraudulent?
2. Forcing me to sign a new lease or raise the rent effective immediately--extortion?
3. Placing untrue notices on my door for my neibors to see--Libel?
4. Banging on my door (when the doorbell works) with security guards in tow giving me notice to vacate in 7 days--Terroristic threats?
5. Amending the notice to only 30 days (when they know it's 60 days)--Harrassment?
6. Entering my apartment to tape late notice on one occassion and a check on antoher--Breaking and entering?
Expert:  Law Pro replied 2 years ago.
I have read that statutes and know of no law where the new landlord from a foreclosure must notice the tenant of the fact. Please correct me if I'm wrong.

I understand. So then to recap, the following is my list of their illegal violations...correct me if I'm wrong:

1. Is not disclosing the new owners name/contact info fraudulent? No, nothing I find makes it a legal obligation for them to notice you. However, there are ramifications if they don't - they do have to give you extensions and/or abide by the lease agreement if the tenant so desires.

2. Forcing me to sign a new lease or raise the rent effective immediately--extortion? Yes, I agree with you - duress and/or a form of extortion.

3. Placing untrue notices on my door for my neighbors to see--Libel? No, they didn't publish such intentionally to 3rd parties. However, duress and a breach of quiet enjoyment being an illegal act and a nuisance - in fact a form of fraud.


4. Banging on my door (when the doorbell works) with security guards in tow giving me notice to vacate in 7 days--Terroristic threats? No. But fraud, duress, breach of the warranty of quiet enjoyment, and a nuisance.

5. Amending the notice to only 30 days (when they know it's 60 days)--Harassment?

Maybe, maybe not. I would think that the judge would think it's harassment, a breach of quiet enjoyment, etc. - it's their method of operation - a continuation of illegal and fraudulent conduct meant to harass.

6. Entering my apartment to tape late notice on one occasion and a check on another--Breaking and entering?

They must give you reasonable 24 hours notice before they enter your apartment unless an emergency. So they didn't commit a crime - but it's harassment certainly.



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Customer: replied 2 years ago.
With respect to item 1, does the following apply and if so does it mean that I have served the correct individuals--that being the leasing & collections mgrs as proper agents?:

O.C.G.A. § 44-7-3 provides:

  • (a) At or before the commencement of a tenancy, the landlord or an agent or other person authorized to enter into a rental agreement on behalf of the landlord shall disclose to the tenant in writing the names and addresses of the following persons:
    • (1) The owner of record of the premises or a person authorized to act for and on behalf of the owner for the purposes of serving of process and receiving and receipting for demands and notice; and
    • (2) The person authorized to manage the premises.
      In the event of a change in any of the names and addresses required to be contained in such statement, the landlord shall advise each tenant of the change within 30 days after the change either in writing or by posting a notice of the change in a conspicuous place.
  • (b) A person who enters into a rental agreement on behalf of an owner or a landlord or both and who fails to comply with the disclosure requirements in paragraphs (1) and (2) of subsection (a) of this Code section becomes an agent of the owner or the landlord or both for serving of process and receiving and receipting for notices and demands; for performing the obligations of the landlord under this chapter; and for expending or making available, for the purpose of fulfilling such obligations, all rent collected from the premises.
Expert:  Law Pro replied 2 years ago.
Given that statute - I don't think you have filed suit against the correct party or owner.
You didn't or don't have a lease.

That has been my issue from the beginning - that you filed suit against the wrong party or individuals.

So I think you had no alternative but to file suit against the owner - not the property manager.



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Customer: replied 2 years ago.
Okay, so these same people can send me notices and file dispossessory warrants against me and NOT reveal who the owner of the property as seems to be required in this statute.

My thinking is that the provision in the lease which spells out the month-to-month tenancy is at least an implied lease because I still owed rent every month. These people collected that rent, sent notices and if nothing else acted as the agent or on the agents behalf
Expert:  Law Pro replied 2 years ago.
The problem is - you were already a tenant with the previous owner.

Notices and dispossessory notices and warrants are void if they don't have the authority nor power to do such - it's a moot act on their part.

What is going to happen here is - that the owner is going to say they had not power to do what they did and pursue them.

You have an argument certainly. It all depends on what the judge thinks.
Customer: replied 2 years ago.
If they had no authority to do what they did then they were acting illegally on their own behalf and if THAT'S the case don't I still have cause to sue them?
Expert:  Law Pro replied 2 years ago.
What are your damages against them - they didn't commit a crime. Yes, they harassed you.

But you have to plead that - you can't go into court having plead the wrong cause of action against the defendants.
Customer: replied 2 years ago.
My damages against them are they caused me to be afraid. It affected my peace of mind. No one has the right to do that. They were menacing--I didn't even know them. They interferred with my business--my income, my sleep, eating habits. And I don't even care about the money...I want them to know that they can't just continue to push people around--extorting them and holding others to laws that they themselves feel free to violate.

I don't know...maybe I just want to be heard and respected. I did everything I was supposed to do. I've NEVER been late or had a bounced check, no loud music, no disturbances, no complaints, no destruction of property. I lived here for four years and was planning to buy a condo or house after January. Now I have to sign a new lease.
Expert:  Law Pro replied 2 years ago.
I understand your outrage. I have been a both a tenant and landlord. Being a landlord I love a tenant that did no damage - regardless of paying the rent on time.

You can't get personal injuries in a breach of contact/lease action. As such you must plead a tort - fraud, misrepresentation, nuisance, invasion of privacy, etc.

Maybe if you talk to other tenants you can find a tenant that went through the same issues you did. If they would come in an testify on your behalf that would go far with the judge and I'm sure they would award damages to you under the circumstances.
Customer: replied 2 years ago.
Very well.

Last question: How can I research Georgia case law where tenants had similar problems ie foreclosed property owner couldnt be located because employees refused to disclose the owner's info?

I've made several attempts to find an attorney to act on my behalf but they won't even return my calls so I'm forced to represent myself and I'm sure they'll be quoting their position from case law so I'd like to do the same, as best I can.
Expert:  Law Pro replied 2 years ago.
I hate to say it but even if you subscribe to legal search engines you most likely won't find any case law on the subject. It's too expensive for a residential tenant to appeal and it would be highly unlikely that you have a commercial tenant in the same situation.

Your best search is Google or Google Scholar if you don't subscribe to a legal search engine.

The problem is - an attorney would have to charge a minimum of $500 and they couldn't make any guarantees - not even a remote guarantee.

That being the case - they would hate to take the case to begin with and disappoint the client.


Good luck!!!
Customer: replied 2 years ago.
Don't get me wrong, I expect to and want to win and I would hope my win causes them their jobs--but even if I don't win--as long as the next opportunity to harrass a tenant gives them cause to pause...it will be well worth it to me. $500 is a bargain for an attorney. Can you recommend one in the Atlanta, GA area?
Expert:  Law Pro replied 2 years ago.
No, I can't sorry.

I understand principles - it's a laudable endeavor.

Good luck!!
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