HB1016: HB1016 Magistrate courts; expand existing remedies regarding unauthorized possession of real property

26 LC 61 0434S The House Committee on Judiciary offers the following substitute to HB 1016: A BILL TO BE ENTITLED AN ACT To amend Article 1 of Chapter 10 of Title 15 and Article 2 of Chapter 11 of Title 44 of the1 Official Code of Georgia Annotated, relating to general provisi ons relative to magistrate2 courts and proceedings against intruders, respectively, so as t o expand existing remedies3 regarding the unauthorized possession of real property; to prov ide for magistrate court4 jurisdiction over certain related proceedings; to authorize cer tain third parties to request5 assistance from law enforcement for the expedient removal of a person in unauthorized6 possession of real property under certain conditions; to authorize the removal of a person in7 unauthorized possession based on such request and conditions; t o require that any person8 subject to removal or arrest for the unauthorized possession of real property be given three9 days to present a counteraffidavit prior to any such removal or arrest; to provide for10 legislative findings and intent; to provide for definitions; to make conforming changes; to11 provide for an effective date and applicability; to provide for related matters; to repeal12 conflicting laws; and for other purposes.13 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:14 H. B. 1016 (SUB) - 1 - 26 LC 61 0434S SECTION 1.15 Article 1 of Chapter 10 of Title 15 of the Official Code of Geo rgia Annotated, relating to16 general provisions relative to magistrate courts, is amended in Code Section 15-10-2, relating17 to general jurisdiction and authority of magistrate to act, by revising paragraph (19) of18 subsection (a) as follows:19 "(19) Proceedings against intruders and unlawful squatting as provided in Code Sections20 44-11-30, 44-11-30.1, 44-11-31, 44-11-32, and 44-11-33."21 SECTION 2.22 Article 2 of Chapter 11 of Title 44 of the Official Code of Georgia Annotated, relating to23 proceedings against intruders, is amended by revising Code Sect ion 44-11-30, relating to24 manner of ejecting intruders, affidavit, ejection by sheriff an d other peace officers, and 25 counteraffidavit, as follows:26 "44-11-30.27 When any person, either by himself or herself, his or her agent , or his or her attorney in28 fact, shall take and subscribe an affidavit in writing before a ny officer authorized to29 administer an oath setting forth that he or she claims, in good faith, the right of possession30 to the described land or tenement certain real property and that such land or tenement real31 property is in the hands of another a named person who does not in good faith claim a right32 to such possession and yet refuses to abandon the same such real property, it shall be the33 duty of the sheriff, deputy sheriff, constable, marshal, or other individual certified by the34 Georgia Peace Officer Standards and Training Council of the cou nty where the land or35 tenement real property is located, upon receiving such affidavit, to exhibit such affidavit36 to the person described as being in possession of such land or tenement real property at37 least three days prior to turning such person out of possession unless the person in38 possession tenders to such sheriff, deputy sheriff, constable, marshal, or other individual39 certified by the Georgia Peace Officer Standards and Training Council a counteraffidavit40 H. B. 1016 (SUB) - 2 - 26 LC 61 0434S stating that he or she claims, in good faith, a legal right to the possession of the land or41 tenement real property. If no such counteraffidavit is tendered, such Such sheriff, deputy42 sheriff, constable, marshal, or other individual certified by t he Georgia Peace Officer43 Standards and Training Council shall turn out such person once three days have elapsed44 from the day such the affidavit was exhibited by the sheriff, deputy sheriff, consta ble,45 marshal, or other individual certified by the Georgia Peace Officer Standards and Training46 Council."47 SECTION 3.48 Said article is further amended by adding a new Code section to read as follows:49 "44-11-30.1.50 (a) As used in this Code section:51 (1) 'Affected owner' means a unit owner or lot owner of affected property.52 (2) 'Affected property' means real property within a condominium or property owners'53 development that is in the possession of a person, other than a unit owner or lot owner,54 who may not have a good faith claim to such possession and yet refuses to abandon such55 real property.56 (3) 'Condominium' shall have the same meaning as set forth in Code Section 44-3-71.57 (4) 'Condominium association' shall have the same meaning as the term 'association' as58 set forth in Code Section 44-3-71.59 (5) 'Interested third party' means any unit owner or lot owner of real property within the60 same condominium or property owners' development as affected property who is not an61 affected owner.62 (6) 'Lot owner' shall have the same meaning as set forth in Code Section 44-3-221.63 (7) 'Property owners' development' shall have the same meaning as set forth in Code64 Section 44-3-221.65 H. B. 1016 (SUB) - 3 - 26 LC 61 0434S (8) 'Property owners' development association' shall have the same meaning as the term66 'property owners' association' or 'association' as set forth in Code Section 44-3-221.67 (9) 'Unit owner' shall have the same meaning as set forth in Code Section 44-3-71.68 (b) The General Assembly finds that the right to exclude other s from entering, and to69 direct the expedient removal of others in unauthorized possession of, real property within70 a condominium or property owners' development is a substantial property right belonging71 to both the unit owner or lot owner of the affected property and to any other unit owner or72 lot owner of real property located within such condominium or p roperty owners'73 development. The General Assembly further finds that existing remedies regarding the74 unauthorized possession of real property fail to adequately protect the safety and property75 rights of such unit owners and lot owners or to sufficiently deter theft, vandalism, and other76 criminal activity. The intent of this Code section is to suppo rt the prompt restoration of77 possession of real property to the lawful owner and to preserve the safety and property78 rights of all unit owners and lot owners within a condominium o r property owners'79 development while limiting the opportunity for criminal activity.80 (c) Any interested third party shall have a right to enjoin the unauthorized possession of81 any affected property located within such interested third party's condominium or property82 owners' development in accordance with the procedures set forth in this Code section.83 (d) Except as otherwise provided in Code Section 44-11-30 and subject to the84 requirements set forth in subsection (e) of this Code section, when an interested third party,85 either by himself or herself, his or her agent, or his or her a ttorney in fact, shall take and86 subscribe an affidavit in writing before any officer authorized to administer an oath setting87 forth that such owner claims, in good faith and acting based on reasonable certainty, that88 certain real property within such interested third party's condominium or property owner's89 development is in the hands of a named person who does not in good faith claim a right to90 such possession yet and refuses to abandon such real property, it shall be the duty of the91 sheriff, deputy sheriff, constable, marshal, or other individua l certified by the Georgia92 H. B. 1016 (SUB) - 4 - 26 LC 61 0434S Peace Officer Standards and Training Council of the county wher e the real property is93 located, upon receiving such affidavit, to exhibit such affidavit to the person described as94 being in possession of such real property at least three days prior to turning such person out95 of possession unless the person in possession tenders to such s heriff, deputy sheriff,96 constable, marshal, or other individual certified by the Georgi a Peace Officer Standards97 and Training Council a counteraffidavit stating that he or she claims, in good faith, a legal98 right to the possession of the real property. If no such counteraffidavit is tendered, such99 sheriff, deputy sheriff, constable, marshal, or other individua l certified by the Georgia100 Peace Officer Standards and Training Council shall turn out such person once three days101 have elapsed from the day the affidavit was exhibited by the sh eriff, deputy sheriff,102 constable, marshal, or other individual certified by the Georgi a Peace Officer Standards103 and Training Council.104 (e)(1) Notwithstanding any provision to the contrary in this a rticle, no interested third105 party, either by himself or herself, his or her agent, or his o r her attorney in fact, shall106 initiate the removal procedure set forth in subsection (d) of this Code section unless he107 or she has provided at least three days' written notice, sent by certified mail or statutory108 overnight delivery, of his or her intent to initiate such removal procedure to the affected109 owner at the address or addresses designated by the affected owner to the condominium110 association or property owners' development association and to any other address or111 addresses for which the interested third party or the condominium association or property112 owners' development association might be aware. If the affecte d owner authorizes the113 removal procedure or fails to respond to the notice within the three-day period, the114 interested third party seeking to initiate the removal procedure set forth in subsection (d)115 of this Code section shall be authorized to proceed with such removal procedure. If the116 affected owner denies permission to initiate the removal procedure, the interested third117 party shall be barred from proceeding with the removal procedure under subsection (d)118 of this Code section.119 H. B. 1016 (SUB) - 5 - 26 LC 61 0434S (2) The interested third party seeking to engage in the remova l procedure set forth in120 subsection (d) of this Code shall work with the condominium ass ociation or property121 owners' development association to provide the notice required under paragraph (1) of122 this subsection. A condominium association or property owners' development association123 shall cooperate with an interested third party to provide any n otice required under124 paragraph (1) of this subsection."125 SECTION 4.126 Said article is further amended by revising Code Section 44-11- 31, relating to sheriff and127 other peace officers competent to administer oath to person in possession, as follows:128 "44-11-31.129 The sheriff, deputy sheriff, constable, marshal, or other individual certified by the Georgia130 Peace Officer Standards and Training Council shall be a competent officer to administer131 the oath to the person in possession if he or she desires to tender the counteraffidavit132 provided for in Code Section 44-11-30 or Code Section 44-11-30.1."133 SECTION 5.134 Said article is further amended by revising Code Section 44-11-32, relating to procedure on135 submission of counteraffidavit, trial, nonmeritorious submission, and appeal, as follows:136 "44-11-32.137 (1)(a) If the party in possession submits a counteraffidavit as prov ided in Code138 Section 44-11-30 or Code Section 44-11-30.1 , the sheriff, deputy sheriff, constable,139 marshal, or other individual certified by the Georgia Peace Officer Standards and Training140 Council shall not turn him or her out of possession but shall l eave both parties in their141 respective positions. In such an event, the sheriff, deputy sh eriff, constable, marshal, or142 other individual certified by the Georgia Peace Officer Standar ds and Training Council143 H. B. 1016 (SUB) - 6 - 26 LC 61 0434S shall return both affidavits to the office of the clerk of the magistrate court of the county144 in which the land is located for a nonjury trial in accordance with the laws of this state.145 (2)(b) If the party in possession submits any counteraffidavit or ot her documentation at146 trial, upon the magistrate's determination that the affidavit is not meritorious based on the147 preponderance of the evidence, the sheriff, deputy sheriff, con stable, marshal, or other148 individual certified by the Georgia Peace Officer Standards and Training Council shall turn149 him or her out of possession to occur as soon as practicable pu rsuant to a writ of150 possession.151 (3)(c) The court may, as appropriate, award the plaintiff the fair market value rent for the152 duration of the party's occupancy, and other monetary relief found appropriate by the court. 153 A party shall have the right to appeal the decision of such mag istrate court and such154 decision shall be directly appealable to the Georgia appellate courts and not by de novo155 review by the superior court."156 SECTION 6.157 This Act shall become effective on July 1, 2026, and shall apply to all offenses occurring on158 or after such date.159 SECTION 7.160 All laws and parts of laws in conflict with this Act are repealed.161 H. B. 1016 (SUB) - 7 -