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Ask Legalease Your Own Question
Legalease, Lawyer
Category: Real Estate Law
Satisfied Customers: 16370
Experience:  13 years experience in RE Law, including LL/Tenant, contractor disputes, comm'l prop. issues
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I understand your point regarding non-payment of rent would

Customer Question

I understand your point regarding non-payment of rent would not require termination of the lease. We did also assert "constructive eviction" as a defense along with several other claims. However, we still loss the case. My question today is more germane to process. If the lease is still in effect, how can you start dispossession and swear out a writ affidavit before you actually terminate the lease to support the cause of actions available under OCGA 44-7-50? Specifically, I want to understand if this would be a cause for dismissal under an appeal.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Legalease replied 1 year ago.

Hello again --


Do you have an attorney? If you have mold issues as bad you described then you should not have lost this case and either the judge is wrong or the matter was not plead correctly. If the judge was wrong, then an appeal is appropriate. My suggestion is that either you or your attorney research constructive eviction cases in your state and surrounding states and try to find some facts in those cases that are somewhat near to your facts (mold issues that are so bad that you cannot live there) so you can show that the first judge who reviewed it made a mistake of law.


And you can swear out an affidavit claiming that the lease is breached but that the lease is still in effect. Just because a lease is breached or violated does NOT mean that the lease is no longer in effect. All other provisions of the lease remain in effect, including the requirement to pay rent for every month the lease is in effect (even if the eviction is for nonpayment of rent). Just like a contract where if one provision is violated, the other provisions of the contract are still effective and can be enforced against the other party to the contract by a court. However, there is no reason why you cannot argue that the lease was no longer in effect when they filed to dispossess you from the premises -- I just do not find it to be a viable argument and I doubt you will get anywhere with it on appeal.


I would appreciate it if you could press the middle star or the fourth or fifth star on the right of the middle star in the ratings section above and in the previous question that you asked of me. I am paid absolutely nothing for my time unless you press the middle star or the fourth or fifth star in the ratings section above and it is typical that most attorneys will not continue to answer questions until they are paid for the first question that was asked. I stepped beyond that and did answer the second question. I know you are angry about the situation and I find it hard to believe that you FLAT OUT lost this case when you have such serious mold issues, but claiming that there is no lease any longer from the date they file for eviction is not a viable claim and I have never seen it used in any state. THANK YOU VERY MUCH