Habitat - May/June 2017 - 11

LEGAL CORNER

J. Mike Williams
Fowler, Hein, Cheatwood
& Williams, P.A.

T

An Overview of the
Duty to Repair

he apartment owner and management of an
apartment community have an obligation to make
all reasonable and necessary repairs to maintain
the apartment and appliances in good working
condition. The failure to repair is the most common type
of claim or defense asserted by a resident in defense of a
dispossessory action. Georgia law provides that the landlord
is solely responsible for making repairs to the apartment,
unless the damages were caused by the resident, occupants or
guests. Unlike a commercial lease, a landlord is prohibited by
public policy of imposing any obligation in a lease agreement
to shift the duty of repair to the resident. Any attempt to do so
will be deemed unenforceable.
Management is not obligated to make repairs until notice
is received by the resident. Repairs must then be made in a
reasonable and timely manner. The resident is required by
law to report the necessity for all repairs. After receiving
notice of the need for maintenance, management also must
be given a reasonable period of time to make the repair. What
is reasonable depends on the circumstances of each case.
Georgia law also prohibits a resident from withholding
rent due to management's failure to make repairs even if
the repairs are not made within a reasonable time after
notice is provide. However, a resident has several options for
obtaining compensation from management if repairs are not
made within a reasonable time. Often management provides
a reasonable rental concession to residents in the form of a
credit against future rent in order to resolve repair issues. If
the resident withheld rent because repairs were not made,
the resident may file an answer and counterclaim against
management in the dispossessory proceeding. The resident
typically seeks the diminished value of the premises (meaning
the apartment is worth less than what they are paying) for
the period the apartment remained out of repair. In most
instances, the resident will have to move even if the resident
receives an offset for the diminished value of the premises.
Some courts will enter what is known as a repair order, which
requires the resident to pay into court the base rent and
utilities, and management must complete the repairs within
a two to three week period depending on the extent of the
repairs. If the resident fails to pay rent by the date specified
in the order, then the court will issue a writ of possession. In
any event, the case will return to court for trial to determine

whether the repairs were made, and/or whether the resident is
entitled to an offset for the failure to repair.
A resident can also utilize "repair and deduct," which is a
procedure and defense the resident can follow if the repairs
are not completed within a reasonable time after notice is
given. In essence, if the landlord fails to make the repairs
within a reasonable time after notice is provided, the resident
can complete the repairs by hiring a contractor and deduct the
amount paid to the contractor from the rent.
The resident can also continue to pay the rent and occupy
the premises, and then file a lawsuit in the Magistrate Court
seeking reimbursement for the costs of repairs or reduced
value of the premises. A resident who files this kind of lawsuit
must prove that he or she gave notice of the need for repairs
and allowed management a reasonable time for completing
the repairs.
If the condition of the apartment is so bad that it renders
it uninhabitable, the resident may move out and declare the
lease terminated due to a constructive eviction. This defense
requires the resident to actually move out and surrender
the keys and possession to management. The resident must
prove that management's failure to make repairs resulted in a
condition so deplorable that the apartment was not fit for human
habitation. Obviously, the resident must show that he or she
gave notice of the need for repairs and that management
failed to make the repairs over a length of time that resulted
in the premises to deteriorate to such a condition not fit
for habitation.
The case law in Georgia requires very bad conditions inside
the apartment home that totally disrupts the residents ability
to live in the apartment. The resident will sometimes attempt
to raise constructive eviction as a defense to a dispossessory
action. However, in most instances, they are still residing in
premises negating their ability to prevail on the defense. This
defense is difficult to prove and seldom granted by the court.
What is a reasonable length of time to respond to repair
requests? Obviously, it depends on the nature of the repair. For
example, an air conditioner that stops working in the middle of
the summer requires the landlord to make the repair in a much
shorter time period than a towel rack that has fallen off the wall.
However, it is important to address repair requests as soon as
possible while documenting any delay in completing the repair,
especially if it is due to the resident's refusal to allow entry.
M AY/J U N E 2 017

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H A BITAT

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Table of Contents for the Digital Edition of Habitat - May/June 2017

Chair's Message
Legal Corner
Best Practices for Turning Apartments
Preparing for the Winter
Government Affairs
Up Close
Foundation Update
Volunteer’s Corner
AAA Platinum Patron Member Profile
AAA Gold Patron Member Profile
AAA Gold Patron Member Profile
New Members
Advertisers’ Index
Habitat - May/June 2017 - intro
Habitat - May/June 2017 - cover1
Habitat - May/June 2017 - cover2
Habitat - May/June 2017 - 3
Habitat - May/June 2017 - 4
Habitat - May/June 2017 - 5
Habitat - May/June 2017 - 6
Habitat - May/June 2017 - 7
Habitat - May/June 2017 - 8
Habitat - May/June 2017 - Chair's Message
Habitat - May/June 2017 - 10
Habitat - May/June 2017 - Legal Corner
Habitat - May/June 2017 - 12
Habitat - May/June 2017 - 13
Habitat - May/June 2017 - Best Practices for Turning Apartments
Habitat - May/June 2017 - 15
Habitat - May/June 2017 - Preparing for the Winter
Habitat - May/June 2017 - 17
Habitat - May/June 2017 - Government Affairs
Habitat - May/June 2017 - 19
Habitat - May/June 2017 - 20
Habitat - May/June 2017 - 21
Habitat - May/June 2017 - 22
Habitat - May/June 2017 - Up Close
Habitat - May/June 2017 - 24
Habitat - May/June 2017 - Foundation Update
Habitat - May/June 2017 - Volunteer’s Corner
Habitat - May/June 2017 - 27
Habitat - May/June 2017 - 28
Habitat - May/June 2017 - 29
Habitat - May/June 2017 - 30
Habitat - May/June 2017 - AAA Platinum Patron Member Profile
Habitat - May/June 2017 - 32
Habitat - May/June 2017 - AAA Gold Patron Member Profile
Habitat - May/June 2017 - 34
Habitat - May/June 2017 - AAA Gold Patron Member Profile
Habitat - May/June 2017 - New Members
Habitat - May/June 2017 - 37
Habitat - May/June 2017 - Advertisers’ Index
Habitat - May/June 2017 - cover3
Habitat - May/June 2017 - cover4
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