The Georgia Squatter Reform Act: First Impressions
By: Sean Tropea – South Carolina & Georgia Licensed Managing Attorney
with Brownlee Whitlow & Praet
Introduction
In April 2024, the Georgia Legislature passed HB 1017, also known as the Georgia Squatter Reform Act (the “Act”). Created with intent to address growing squatter activity by providing property owners with a more efficient dispossessory alternative than eviction, this Act is now seeing implementation throughout the state, and its first impressions may provide valuable opportunities for feedback to lawmakers, so the Act may receive appropriate amendment(s) to best serve its purpose and deliver consistent, effective results.
Trespass And Eviction as Inadequate Means of Addressing Squatting
Squatters are those whose occupancy and possession of property is unauthorized and unlawful – a squatter’s occupancy is not associated with a legal document authorizing possession (e.g., lease) or ownership (e.g., deed).
For property owners in Georgia, squatters can present a potentially difficult and expensive legal problem.
As an unlawful and unauthorized intruder, in theory, a squatter is a trespasser and thus appears subject to arrest and removal by law enforcement; however, if a squatter does not appear transient (e.g., appears to be residing in a property with personal effects such as furniture), then law enforcement is likely to refuse to remove the squatter and instead inform the property owner that he/she must go through eviction, especially when the squatter claims to be paying rent to reside in the property and/or produces an illegitimate lease to cause delay or confusion.
As a result, property owners seeking to resolve a squatter issue will then proceed by commencing eviction proceedings just as a landlord would do when evicting a tenant who did not timely and/or sufficiently pay rent; however, the problem that property owners who seek to evict squatters will presumably encounter is that the existence of a landlord-tenant relationship is a condition precedent for eviction pursuant to O.C.G.A. § 44-7-49 et seq., and thus the lack of a landlord-tenant relationship between the property owner and a squatter may be a valid defense to eviction, resulting in dismissal.
It is possible for a property owner to attempt dispossessing a squatter through eviction; however, even if the squatter and/or court does not raise lack of the landlord-tenant relationship as a condition precedent, the eviction process can take weeks, months, or longer depending on the facts and circumstances.
O.C.G.A. § 44-11-30: A Lesser-Known Option
It is the unique quandary presented by law enforcement’s potential unwillingness to dispossess squatters as trespassers and the lack of a condition precedent that leaves property owners understandably frustrated and curious about what options are available to resolve the issue of someone who is squatting on their property – this is where another option may come into play and presumably why the Act now exists.
Since trespass and eviction are presumably inadequate means of dispossessing squatters in Georgia, the seemingly most appropriate option available to property owners lies within O.C.G.A. § 44-11-30. Prior to certain changes in the law as provided by the Act, the process was one where the property owner first executes an affidavit addressing the issues of property ownership and that the property is in possession of a squatter, then the property owner provides said affidavit to the sheriff, after which point the sheriff may then contact and dispossess the squatter unless the squatter can produce a counter-affidavit setting forth a good faith legal right for the squatter to possess the property.
Since the procedures of O.C.G.A. § 44-11-30 are much less well-known than those relating to trespass and eviction, information on how one may contest and/or delay dispossessory efforts under this statute are incidentally and presumably more unfamiliar to squatters, who may be clueless when it comes time to respond to the property owner’s affidavit.
Since O.C.G.A. § 44-11-30 is comparatively much less utilized than other dispossessory options, it can also perplex and delay assistance from law enforcement. BWP law firm has facilitated successful communications with law enforcement to interpret O.C.G.A. § 44-11-30 and optimize timely resolution of certain action items to effectuate timely dispossession of squatters.
Amendments of Law Per the Georgia Squatter Reform Act
The Act amends Georgia law, including O.C.G.A. § 44-11-30, in ways that should provide property owners with a clearer, stronger means of dispossessing squatters.
First, Georgia’s criminal trespass code is amended by making unlawful squatting a misdemeanor offense. Thus, law enforcement is now authorized to issue citations to suspected squatters. When a citation for unlawful squatting is served, the accused has three (3) business days to vacate the property or produce sufficient documentation (e.g., signed lease, proof of rental payments, etc.) authorizing possession of the premises, else the accused shall be subject to arrest and may face a $1,000.00 fine, up to 12 months in jail, or both.
If the accused does timely produce sufficient documentation, then a court hearing shall be set within seven (7) days to review same. If the court finds in favor of the property owner, then a writ of possession shall be issued to dispossess the squatter who may also be subject to arrest, imposition of fines, and jail time.
Second, the Act amends O.C.G.A. § 44-11-30.
Of note, amendments to O.C.G.A. § 44-11-30 include allowing police, marshals, and other law enforcement to serve owner’s affidavits and remove squatters under the law in addition to county sheriffs. Additionally, the Act provides squatters three (3) days to produce a counter-affidavit. Previously, if a squatter failed to provide a counter-affidavit to the sheriff serving a property owner’s affidavit, then the sheriff would remove the squatter from the property immediately. Under the Act, once the owner’s affidavit is provided to the squatter, the squatter has 3 days to produce a counter-affidavit. If not produced in 3 days, the squatter may be dispossessed.
Unfortunately, some squatters seek to use the aforementioned 3-day rule to prepare a counter-affidavit to produce to the sheriff, which may provide the squatter more time to remain in the property until a court hearing is set, which must be held within seven (7) days in a local magistrate court. Prior to the Act, property owners would have to wait much longer for a jury trial in State or Superior court.
If a court hearing is set and the magistrate judge rules in favor of the property owner, then a writ of possession shall be issued to dispossess the squatter. A property owner may also be awarded damages against the squatter, including the property’s fair market value rent for the duration of the squatter’s occupancy.
Feedback and the Road Ahead
With new laws, the Act being no exception, there are discrepancies between statutory language and the practical means by which it is carried out. Law enforcement is still going through the process of preparing uniform, detailed procedures for implementation of action items required by O.C.G.A. § 44-11-30. Unfortunately, it appears that procedures may vary significantly between counties. Additionally, whether widespread enforcement of the Act’s criminal provisions will occur has yet to be confirmed.
Not surprisingly, courts are also in the process of familiarizing themselves with the new procedures created by the Act, so whether court hearings are set for counter-affidavit situations within 7 days may not be an immediate reality, at least on a state-wide scale.
In summary, how soon the Act’s effectiveness is felt will depend on how soon Georgia’s courts and law enforcement can promulgate and uniformly implement corresponding policies and procedures, with any lingering discrepancies or voids to be timely addressed by its legislature, if necessary.
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