Legislative Update - Week 6
Apartment Industry Facing Active Session
The apartment industry has seen a higher volume of legislation this session, many of which have been introduced by freshman legislators. The issues cover the spectrum, from landlord -tenant to crime notification. In each case, Association representatives are advocating on behalf of the industry and working to educate all members of the general assembly.
Next week, legislators will be in three days; Wednesday will be the final day for legislation to come out of Senate Committees before Crossover Day on March 8. The session is expected to conclude on March 31.
Crossover Day is a critical procedural milestone in the session. It is the final day for Senate Bills to pass the Senate and House Bills to pass the House if they are to have a chance at making it to the Governor’s desk this year. The impending deadline means legislative days will continue to stretch into the evening.
Landlord-Tenant Legislation
Disregard COVID Evictions (SB 206)
Sen. Merritt, D-Atlanta
Assigned to the Senate Judiciary Cmte on Feb-22
SB 206 prohibits a landlord from refusing to enter into a rental or lease agreement based solely on the prospective tenant being previously evicted during the COVID-19 pandemic.
Lease Termination for Stalking Victims (SB 75)
Sen. Jackson, D-Stone Mtn
Pending in the Senate Rules Cmte
SB 75 provides for lease termination for victims of stalking. Members of the Association met with the sponsor to discuss her initiative on February 4. Working with the sponsor and committee chair, the Association testified that the industry does not object to the substitute version of the bill, which tracks current language related to victims of domestic violence. Click here for additional information.
“Family Violence” Expansion (HB 231)
Rep. Gaines, R-Athens
Pending in the House Judiciary Non-Civil Cmte
HB 231 expands the applicability of protective orders involving victims of stalking to include certain acts between persons who have or are dating or conceived a child. This would impact the circumstances under which a tenant can terminate their lease should SB 75 be signed into law.
Tenants’ Bill of Rights (HB 524)
Rep. Lim, D-Norcross
Pending in the House Judiciary Cmte
HB 524 requires landlords to provide residential tenants with a notice of tenants' rights and responsibilities prior to the commencement of any residential rental or lease agreement. For more information, click here.
Landlord Consent for Home Business (HB 467)
Rep. Kendrick, D-Lithonia
Pending in the House Ways and Means Cmte
HB 467 prohibits certain counties from requiring proof of a landlord's consent to the operation of a home business when collecting occupation taxes or regulatory fees.
Right to Cure (HB 408)
Rep. Cooper, R-Marietta
Pending in the House Judiciary Cmte
HB 408 makes changes to the procedures required to initiate a dispossession, including a demand by the owner and a tenant’s opportunity to cure. Click herefor more information.
Eviction Notices to Tenants (HB 301)
Rep. Park, D-Lawrenceville
Pending in the House Judiciary Cmte
HB 301 adds additional notice requirements for the termination of tenancies. Click here for additional information.
Warranty of Title (HB 344)
Rep. McLaurin, D-Atlanta
Pending in the House Judiciary Cmte
HB 344 relates to covenants and warranties generally and states that a general warranty of title does not limit or encumber rights arising from the relationship of landlord and tenant. For more information click here.
Other Property Management Legislation
Wavier of Liens (SB 143)
Sen. Tippins, R-Marietta
Adopted by the Senate on Feb-25
In a 2019 court case, the Georgia Court of Appeals[1] determined that when a contractor signs a lien waiver, it waives claims for “all purposes,” not only for the preservation of lien rights, unless the contractor files an affidavit of nonpayment or a claim of lien within 60 days.
In 2020, the legislature adopted legislation to update the lien law and preserve the ability to pursue breach of contract claims or other rights and remedies available under the law. SB 143 corrects a scrivener’s error in the mandated notice.
Blighted Properties (SB 227)
Sen. Jones, D-Decatur
Assigned to the Senate Judiciary Cmte on Feb-23
SB 227 creates a new condemnation process aimed specifically at buildings over 500,000 square feet built prior to 1995 that have been unoccupied for ten consecutive years or less than 30% occupied for twenty consecutive years.
Coal Tar Sealant Products (SB 262)
Rep. Hufstetler, R-Rome
Assigned to the Senate Natural Resources Cmte on Feb-26
SB 262 prohibits the application and sale of coal tar sealant products. These are frequently applied to driveways and asphalt parking lots but have been found to contain high levels of toxic chemicals.
COVID Liability Extension (HB 112)
Rep. Kelley, R-Cedartown
Pending in the Senate Judiciary Cmte
HB 112 extends last year's legislation to provide certain immunities from liability claims regarding COVID-19 by one year, until July 14, 2022.
Crime and Safety Notices to Tenants (HB 138)
Rep. Mainor, D-Atlanta
Pending in the House Judiciary Cmte
HB 138 requires landlords to obtain and provide notice to existing and prospective tenants regarding crimes occurring on the premises. On February 9, the Association testified in opposition to the measure before a House Judiciary Subcommittee. Subcommittee members were generally concerned about the availability of crime information specific to individual properties. Click here for additional information.
Trial Bifurcation (SB 189)
Sen. Cowsert, R-Athens
Pending in the Senate Judiciary Cmte
SB 189 allows for civil trials to be separated into two parts – one to determine liability, and if liability is found, a second to determine damages.
Childhood Lead Exposure Study Committee (HR 52)
Rep. Dempsey, R-Rome
Pending in the House Rules Cmte
HR 52 creates the Joint Study Committee on Childhood Lead Exposure, noting that a leading source of exposure is older residences.
Other pending property management items include:
- Credit Reporting Moratorium (HR 72), urging the US Congress to enact legislation placing a moratorium on negative credit reporting during the COVID-19 pandemic.
- Description of Rental Property (HB 184), prohibiting the false representation of a residential rental dwelling.
- Funding Database (HB 180), requiring state and local governments to maintain databases of sources of funding available to the public, including rental assistance and other housing-related programs.
- Hairstyle Discrimination (SB 61), prohibiting discrimination based on natural hair.
- Military Fair Housing Act (HB 299), enacting the "Military Fair Housing Act" to add veteran or military status to the protected classes.
- Stalking (SB 197), revising the definition of "place or places" relative to stalking to include the residence.
- Vehicle Booting (HB 400), prohibiting the use of boots or other vehicle immobilization devices statewide unless first explicitly authorized by a local government, including vehicles illegally parked on private property.
- Victims of Sexual Assault (HB 489), providing for a protective order for victims against persons who have committed acts of sexual assault.
Property Taxation and Valuation Legislation
Special Council on Tax Reform (SB 148)
Sen. Hufstetler, R-Rome
Adopted by the Senate on Feb-24
SB 148 creates the 2021 Special Council on Tax Reform and Fairness for Georgians and the Special Joint Committee on Georgia Revenue Structure. The goal of these groups will be to launch a comprehensive review of the state’s revenue structure, including tax incentives, later this year and implement recommended reforms in 2022. The bill has been co-signed by 38 of the Senate’s 56 members.
Continuing Ed for Board of Equalization (HB 292)
Rep. Williams, R-Cordele
Adopted by the House on Feb-24
HB 292 removes certain continuing education requirements for members of county boards of equalization following their initial training for their first term.
Rehabilitation of Historic Structures (HB 469)
Rep. Stephens, R-Savannah
Heard in a House Ways & Means Subcmte on Feb-26
HB 469 revises procedures, conditions, and limitations relating to tax credits for the rehabilitation of historic structures. The latest version allows workforce housing projects a tax credit equal to 30% of the qualified rehabilitation expenditure.
Other pending property taxation and valuation items include:
- Exemption for Public Property (HB 151), terminating an exemption from ad valorem taxation for public property owned by a political subdivision outside of its territorial limits.
- Taxation of Condemned Property (HB 137), clarifying that otherwise taxable income resulting from compensation to a taxpayer for the governmental condemnation of the taxpayer's real property is not subject to state income tax.
- Excise Tax on AirBNB (HB 317), expanding the state levy of a nightly $5 excise tax to all rooms, lodgings, and accommodations, including those furnished by "marketplace facilitators" like AirBNB.
Code Enforcement, Land Use and Development Legislation
Professional Engineers Act (HB 476)
Rep. Washburn, R-Macon
Favorably reported from the House Regulated Industries Cmte on Feb-23
HB 476 removes Professional Engineers and Land Surveyors from the Professional Licensing Board at the Secretary of State’s Office. It creates a new independent state agency to license and regulate those professions.
Priority Lien for Interior Designers (HB 480)
Rep. Washburn, R-Macon
Favorably reported from the House Judiciary Cmte on Feb-25
HB 480 provides for the creation, declaration, amendment, notice, and priority of liens for labor, services, or materials performed or furnished by registered interior designers.
City Housing Authorities (SB 144)
Sen. Tippins, R-Marietta
Favorably reported from the Senate Government Oversight Cmte on Feb-23
SB 144 limits the ability of city housing authorities to operate outside municipal boundaries without authorization.
Alternative Plan Review (SB 49)
Sen. Dixon, R-Buford
Pending in the House Agriculture & Consumer Affairs Cmte
SB 49 allows for alternative plan review, permitting, and inspection by private professional providers, allowing applicants to select this option at the onset of the process, rather than waiting 30 days for the local government. The applicant is still required to pay the local government 50% of their regulatory fee if they opt for a private provider.
Other pending code enforcement, land use, and development items include:
- Education Members to Planning Commission (HB 221), allowing local boards of education to appoint members to local planning commissions.
- Environmental Impact Reports (HB 279), requiring local governments to post contents of environmental effects reports on their official websites.
- Environmental Justice Commission (HB 431, HB 432), creating the Environmental Justice Commission to consider the disproportionate effect of environmental hazards on low-income communities.
- Housing Tax Credits (HB 311), amending the state’s housing tax credit to no more than 50% of the federal housing tax credit allowed.
- Local Ordinances and Codes Clearinghouse (HB 187), requiring local governing authorities to compile all local ordinances, property maintenance codes, codes of technical regulations, and associated fines and penalties.
- Tax Credits and Bonds (HB 66), providing that local school systems, counties, and municipal governing authorities can become parties to bond validation hearings.
- Zoning Procedures Clearinghouse (HB 186), requiring local governments to compile all zoning decisions and post them on the local government's website.
General Business Legislation
S-Corp Income Tax (HB 149)
Rep. Williamson, R-Monroe
Adopted by the House on Feb-23
HB 149 allows registered S-Corporations to deduct state and local taxes on their federal tax return, as was allowed before recent federal tax reform.
Remote Shareholders’ Meetings (HB 306)
Rep. Gunter, R-Blairsville
Adopted by the House on Feb-24
HB 306 provides that a corporation may hold annual shareholders' meetings and special shareholders' meetings by means of remote communication and provides requirements for such meetings by remote communication. This has been allowed by Executive Order during the pandemic; this legislation seeks to make the allowance permanent.
Remote Online Notarizations (HB 334)
Rep. Gullett, R-Dallas
Favorably reported from the House Judiciary Cmte on Feb-25
HB 334 allows for remote online notarizations. This has been allowed by Executive Order during the pandemic; this legislation seeks to make the allowance permanent.
Uniform Mediation Act (SB 234)
Sen. Kennedy, R-Macon
Pending in the Senate Judiciary Cmte
Created by the Uniform Law Commission and the American Bar Association, the Uniform Mediation Act is intended to keep mediation communications confidential and promote alternative dispute resolution. For more information, click here.
Cybersecurity Standards (SB 52)
Sen. Thompson, R-White
Pending in the House Judiciary Cmte
SB 52 provides standards for cybersecurity programs to protect businesses from liability.
Legislative Index and Additional Information
HB 138: Crime and Safety Notices to Tenants Rep. Mainor, D-Atlanta
HB 138 requires landlords to provide notice to existing and prospective tenants regarding crimes occurring on the premises being leased. The landlord or manager of an apartment building or complex with ten or more residential units must obtain from law enforcement a summary or listing of specific crimes “that occurred on or in such property constituting the” apartment complex. Specific crimes include the commission or attempted commission of murder, assault, battery, aggravated assault, aggravated battery, rape, peeping tom, gang-related crimes, burglary, theft, or felony drug crimes. This applies to instances where these crimes were reported or investigated by law enforcement.
For current residents, the landlord must notify all residents every six months of the summary or listing of crimes of the preceding six-month period. The landlord is required to maintain records of the notification. For prospective residents, the landlord must provide a summary or listing of crimes for the preceding year.
Failure to provide notices or maintain records of notification is deemed an unlawful practice in renting dwellings under state fair housing law, OCGA 8-3-4. Violation of the Fair Housing Act provides for fines up to $50,000 as well as punitive and actual civil damages.
HB 301: Additional Eviction Rights for Tenants Rep. Park, D-Lawrenceville
This measure adds additional notice requirements for the termination of tenancies.
Section 1 of the legislation amends state law related to dispossessory proceedings to require a 14 days’ notice by a landlord for a termination due to refusal to pay rent or damage beyond normal wear and tear. In either case, the tenant has the ability to remedy the deficiency and avoid eviction. For other defaults in the lease agreement, the landlord is required to provide a 30-day termination notice. If the tenant commits a violent act, engages in criminal activity, or threatens to be a real and present danger, the landlord need only provide three days’ notice.
Section 2 amends state law relating to the issuance of summons, service, time for answer, and defenses and counterclaims. It extends the window for the tenant to answer a summons from seven to fourteen days. Section 3 relates to when tender of payment by tenant serves as complete defense and similarly extends the window for the tenant to be allowed to pay all rents owed from seven to fourteen days.
Section 4 amends state law relating to judgment, writ of possession, landlord’s liability for wrongful conduct, distribution of funds paid into court, and personal property. It adds the following new language:
(c)(1) Following the entry of a judgment in favor of the landlord and against the tenant for the possession of the premises and forfeiture of the tenancy due to nonpayment of rent, the court, at the time of the show cause hearing or trial or upon subsequent motion of the tenant but before the execution of the writ of possession, may stay the writ of possession upon good cause and on such terms that the court deems fair and just for both parties. In making this decision, the court shall consider evidence of the following factors:
(A) The tenant's willful or intentional default or intentional failure to pay rent;
(B) Whether nonpayment of the rent was caused by exigent circumstances that were beyond the tenant's control and that are not likely to recur;
(C) The tenant's ability to timely pay the judgment;
(D) The tenant's payment history;
(E) Whether the tenant is otherwise in substantial compliance with the rental agreement;
(F) Hardship on the tenant if evicted; and
(G) Conduct related to other notices served within the last six months.
(2) The burden of proof for such relief under this subsection shall be on the tenant. If the tenant seeks relief pursuant to this subsection at the time of the show cause hearing, the court shall hear the matter at the time of the show cause hearing or as expeditiously as possible so as to avoid unnecessary delay or hardship on the parties
HB 344: Warranty of Title Rep. McLaurin, D-Atlanta
HB 344 relates to covenants and warranties generally and states that a general warranty of title does not limit or encumber rights arising from the relationship of landlord and tenant. It says specifically that:
“No covenant in this Code section [OCGA 44-5-62] shall be construed to be the same as any common-law covenant of quiet enjoyment between landlord and tenant, nor shall any limit on the applicability of a covenant provided for under this Code section be construed to apply to limit any common-law covenant of quiet enjoyment, express or implied, of any tenant in any claim against his or her landlord.”
HB 408: Right to Cure Rep. Cooper, R-Marietta
HB 408 adds steps to the landlord’s demand for possession. It is similar to an initiative the author pursued last year in partnership with the Enterprise Community Partners, Georgia ACT, and the Georgia Appleseed Center for Law and Justice. New language states that:
(2) Such demand shall be made in writing, shall state the amount of rent then past due or any other basis for the demand for the possession of the property, and shall be delivered to the tenant by:
(A) Hand delivery or by posting on the premises of such lands or tenements; and
(B) First-class mail to the tenant's last known address.
(3) Such demand shall:
(A) State at no more than two inches from the top margin, in at least 16-point Helvetica font, and at least two inches apart from any other text, and in contrasting color to the color of the paper, the words: 'Landlord's Demand for Possession and Tenant's Notice of 7 Day Opportunity to Cure'; and
(B) Instruct the tenant of the means to provide payment or otherwise demonstrate compliance in curing the alleged basis for such demand within seven days or risk eviction.
(4) The owner shall make such demand even if the owner believes that the tenant will refuse to comply with such written demand.
(5) Within seven days after the receipt of such demand by first-class mail, the tenant shall be allowed to tender to the owner and the owner shall accept all rent duly owed or to show that the alleged basis for such demand has been cured. If the tenant tenders such rent or cures such alleged basis, the owner shall not make an affidavit as provided for under subsection (b) of this Code section.
HB 524: Tenants’ Rights Notification Rep. Lim, D-Norcross
HB 524 requires landlords to provide residential tenants with a notice of tenants’ rights and responsibilities. The legislation states that:
(a) Prior to the commencement of any residential rental or lease agreement, the landlord shall provide each tenant with a 'Notice of Tenants' Rights and Responsibilities' as provided in this Code section.
(b) The landlord and each tenant shall initial each page of the notice acknowledging that the landlord has provided and the tenant has received and reviewed the notice.
(c) The notice required by this Code section shall be typed in at least 14-point type and be in substantially the following form:
'NOTICE OF TENANTS' RIGHTS AND RESPONSIBILITIES
***This is a summary of tenants' rights and responsibilities under Georgia law. This statement does not modify your rental or lease agreement or Georgia law. A lease cannot give up a tenant's rights under the law. The information below is not intended as legal advice. Tenants with questions are encouraged to contact an attorney or a local legal aid program.***
I. TENANTS' RIGHTS
Safe Housing in Good Repair
- Tenants have the right to live in a safe rental home in good repair.
- Right to terminate lease without penalty for any tenant experiencing domestic violence seeking to move out, under certain conditions.
- Right, upon written request, to prompt response to request for repairs. The landlord must make repairs within a reasonable time under the law after notice is provided by the tenant.
- If repairs are not made within a reasonable time under the law after notice is given, the tenant has three different remedies:
- Repair and Deduct: Tenant may make the repair and seek reimbursement from the landlord by deducting it from the rent.
- Constructive Eviction: If the landlord's failure to repair constitutes such a material interference with the tenant's use of the premises so as to render the premises uninhabitable under the law, the tenant may abandon the premises and cease paying rent.
- File a Lawsuit: Tenant may file a lawsuit and seek damages for diminution in value, property damages, and even punitive damages and attorney's fees.
- Tenants can also assert failure to repair as a defense to a dispossessory action.
Fair & Equal Access to Housing
- Tenants have the right to not be discriminated against when applying for, living in, or vacating a residence on the basis of race, ethnicity, religion, familial status, or mental or physical disabilities.
Move In/Out Inspection & Return of Unused Security Deposit
- Tenants whose landlord owns more than ten rental units and who pay a security deposit are entitled to a move-in and move-out inspection and the right to the return of any unused security deposit that may have been collected by the rental property owner or manager and a good faith accounting of any charges against that deposit within 30 days after the rental residence has been vacated.
Privacy
- Tenants have a reasonable right to privacy in their apartment home.
- Tenants are generally protected from government inspections or entry into their home without probable cause.
- Inspections may be conducted by management or a third party, if prior notice is given and entry is made during reasonable hours. However, a landlord may enter without a tenant's consent in cases of emergencies.
Fair & Legal Dispossessory Process
- Tenants have the right to a fair and legal dispossessory process in the event of nonpayment of rent or lease violations. The landlord must follow the strict requirements of the Georgia Landlord-Tenant law in order to lawfully evict a tenant.
II. TENANTS' RESPONSIBILITIES
Follow All Lease Provisions
- Tenants are responsible for following all rules outlined in their signed lease agreement throughout their tenancy. The lease agreement binds both the landlord and tenant to the rights and obligations outlined therein.
- Tenants are encouraged to carefully read their lease agreement prior to signing and ask questions about policies or areas of concern in order to avoid potential disputes.
Timely Payment of Rent
- Tenants are responsible for making timely payment of rent on the due date in the amount and frequency as specified in the signed lease agreement.
- Tenants are encouraged to reach out to their property manager or landlord as early as possible if they are concerned about the ability to make a rent payment to discuss options and resources that may be available.
Report Maintenance Requests
- Tenants are responsible for alerting their property manager or landlord of any repair or maintenance request in writing as soon as the problem is noticed so that it can be addressed and further damage is prevented.
- Tenants should note in the written maintenance request whether the repair is an "emergency" or affects the health and safety of the tenant to ensure an immediate response.
- "Retaliatory Eviction" protections are part of the law to prevent landlords from retaliating against tenants who report maintenance issues to management or code enforcement.
Truthfully Represent Information on Rental Application
- Tenants are responsible for providing accurate and true information on the rental application and related documents. Rental application fraud has a higher prevalence in Georgia than any other State. Losses from fraud are substantial, making it necessary to perform more thorough background checks.
Protect Belongings, Obtain Renters Insurance
- Tenants are responsible for keeping their personal property safe and protected. While not legally required, many apartment communities encourage or may require in their leases that all tenants purchase renter’s insurance to protect themselves against the loss of property by fire, weather, or theft and other liabilities.'"
SB 75: Lease Termination for Stalking Victims Sen. Jackson, D-Stone Mtn
In 2018, the Association worked with advocates and legislative leaders to enact HB 835, allowing victims of family violence to terminate their lease when a civil or criminal family violence order had been issued protecting the tenant or their minor child.
This year’s SB 75 expands the definition of “criminal family violence family order” to include stalking as defined at OCGA 16-5-90. In keeping with the 2018 language, the tenant may terminate their residential lease agreement effective 30 days after providing the landlord with written notice of termination when the tenant is a documented victim of stalking. The notice to the landlord must be accompanied by a copy of the applicable civil family violence order or criminal family violence order and a copy of the police report if the order was an ex parte temporary protective order.