Sandifer v. Long Investors, Inc.

• Decision Date: 05 January 1994
• Docket Number: No. A93A2424,A93A2424
• Parties: SANDIFER et al. v. LONG INVESTORS, INC.
• Court: Georgia Court of Appeals

Page 479

440 S.E.2d 479

211 Ga.App. 757

SANDIFER et al. v. LONG INVESTORS, INC.

No. A93A2424.

Court of Appeals of Georgia.

Jan. 5, 1994.

Reconsideration Denied Jan. 28, 1994.

Bernard & Associates, Patricia D. Bernard, Atlanta, for appellants.

Sharon W. Ware & Associates, James F. Cook, Jr., Tucker, for appellee.

BIRDSONG, Presiding Judge.

Appellant/plaintiffs Gail W. Sandifer and Linda G. Matthews-Sandifer appeal the order of the superior court granting summary judgment to appellee/defendant Long Investors, Inc., registered owner of Chateau Villa Apartments. Held:

1. Appellant Gail Sandifer testified by way of deposition that he did not make any arrangements to inform "anyone at Chateau Villa Apartments" as to exactly how he could be contacted while he and his wife were out of town, or on what dates he would be at a given location. Any evidence in conflict with this testimony and offered by appellants without reasonable explanation therefor, whether in affidavit or deposition form, is subject to the rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 343 S.E.2d 680.

2. Appellants' first four enumerations of error are without merit.

(a) Appellants assert the trial court erred in granting summary judgment to appellee, because appellee waived the right to demand payment of rent by the first of the month by its prior conduct. Appellant Gail Sandifer concedes that the landlord was not paid any rent during the entire months of April 1990, and May 1990. Appellants' reliance on Arnold v. Selman, 83 Ga.App. 145, 149(3), 62 S.E.2d 915 is misplaced. Assuming arguendo the record supports a finding of an initial waiver of right to require rent payment on the particular day it is due, nothing in Arnold, supra, enables a tenant to avoid paying rent for a substantial period of time after the rent is due under the lease. Assuming appellee waived its right to have the rent paid promptly on the first of the month, it did not by the prior conduct established in this record waive its right to have the rent paid within a reasonable time period after its due date. Under the circumstances of record, a substantial and unreasonable period of time elapsed without the rent being paid, particularly in view of the "time of the essence" rental payment clause in the lease. There was no waiver of the right to demand payment within the meaning of Arnold, supra.

Additionally, the notice sent by certified mail to appellants' apartment provided that, regarding rent due, appellants had "three (3) days from the date of this letter to comply with the terms of said lease or to remove yourself and possessions from the premises." The notice also expressly stated that "it is the intention of [appellee] to insist upon strict terms of the lease." Yet, not only did appellants fail to pay the April rent within three days, they did not pay the May rent either. See Haynie v. Murray, 74 Ga.App. 253, 39 S.E.2d 567. A letter of notice that tenant must surrender possession and quit the premises if rent due and owing is not paid within three days of the date of notice is a sufficient notice of demand for possession under OCGA § 44-7-50 (see Twin Tower, etc. v. American Marketing, etc., Corp., 166 Ga.App. 364, 366(2), 304 S.E.2d 493), and also was sufficient under the notice provisions of the lease.

(b) Appellant claims that the notice demanding possession was inadequate as it failed to provide adequate notice that the waiver would be revoked as of April 1990. As concluded in Division 2(a) above, there existed no waiver of payment of rent on the date of issuance of the writ of possession in favor of appellee and against tenant appellants.

(c) A demand for possession is a condition precedent to the landlord's right to dispossess the tenant summarily under OCGA § 44-7-50. See Metro Mgmt. Co. v. Parker, 247 Ga. 625, 278 S.E.2d 643. A demand for possession was made. However, appellants claim it was not an adequate demand because appellee knew appellants were not residing at the rental address to which the demand was sent and therefore was aware appellants could not make a timely response to the demand. Examination of existing case law fails to reveal any established procedure for giving of demand for possession pursuant to OCGA § 44-7-50. Under certain conditions a demand upon a tenant to deliver possession may be oral. Compare Jackson v. Hardin, 74 Ga.App. 39, 41(3), 38 S.E.2d 695. We find that pursuant to OCGA § 44-7-50 there must be delivery, actual or constructive, of the demand for possession; in the absence of a written instruction to the contrary from a private tenant to the landlord which includes an effective, optional method of demand, an inference will arise that, at the time the original lease was executed, tenant consented to constructive delivery of a demand for possession by the due mailing thereof to the tenant at the address of the leased residence. This is consistent with the previous finding of this court that "[t]he logical place to serve a resident, private tenant would be at the leased residence." Davis v. Hybrid Indus., 142 Ga.App. 722, 724(1), 236 S.E.2d 854. Appellants, having failed as a matter of law to rebut the inference of consent to constructive delivery of demand for possession, we conclude that an adequate statutory delivery was made of the demand letter in this case. Moreover, we note that, pursuant to the notice provisions of the lease, lessee expressly assented to the giving of any notice required by law or contract by first-class mail to lessee's residence address as listed in the contract, delivery to a person then occupying the rental apartment, posting on the rental apartment door, or by personal delivery to lessee. Suffice it to say, however, that notwithstanding the lease provision, the procedure utilized by appellee/lessor in giving demand notice was not in violation of existing statutory requirements.

(d) After the dispossessory warrant was executed, the county marshal posted a copy of the summons and dispossessory warrant on the door of appellants...