Opinion
31687.
DECIDED SEPTEMBER 6, 1947. REHEARING DENIED SEPTEMBER 19, 1947.
Dispossessory warrant; from Fulton Civil Court — Appellate Division. May 20, 1947.
Wesley G. Bailey, Wesley G. Bailey Jr., for plaintiff in error.
Newell Jones, Jones McFarland, contra.
1. When a tenant, under a contract of rental with a landlord, which provides that the rent is to be paid monthly but specifies no time for the termination of the tenancy, enters lawfully into the possession of the premises, and, after the expiration of the calendar year, remains in possession thereof by permission of the landlord, who continues to receive the rent monthly, a tenancy at will is created. Byrne v. Bearden, 27 Ga. App. 149 ( 107 S.E. 782); Metzer v. Connally Realty Co., 75 Ga. App. 274 ( 43 S.E.2d 169).
2. Where a demand for possession of the premises is alleged by the plaintiff in a dispossessory-warrant proceeding, and is not denied by the defendant in the counter-affidavit, no issue as to demand is made, and the demand will be presumed to have been made in the manner required. Hindman v. Raper, 143 Ga. 643 ( 85 S.E. 843); Bowling v. Hathcock, 27 Ga. App. 67 ( 107 S.E. 384); Minor v. Sutton, 73 Ga. App. 253 ( 36 S.E.2d 158).
DECIDED SEPTEMBER 6, 1947. REHEARING DENIED SEPTEMBER 19, 1947.
On October 22, 1946, Lee Roy Gassaway, through his attorney at law, swore out a dispossessory warrant against Mrs. Beulah Williams. The landlord's affidavit alleged that Mrs. Williams was in possession, as a tenant, of a house and premises situated at No. 1020 Fern Avenue, S.E., in Fulton County, Georgia; that she was holding said house and premises over and beyond the term for which the same were rented or leased to her; that the landlord had demanded possession of said house and premises, and the same had been refused by the tenant; and that said landlord had complied with the rent regulations promulgated by the Administrator of the Office of Price Administration, in that he had given the tenant proper notice with copy to the rent control office, on the following grounds: that he had given the tenant 6-months notice through the O. P. A., and also 60-days notice, and had made demand and the defendant had refused possession. Mrs. Williams in her counter-affidavit denied that her term of rent had expired and that she was holding over and beyond her term, and denied that any rent was due, and alleged that the landlord had not in good faith complied with O. P. A. rules and regulations as a prerequisite to instituting the dispossessory-warrant proceedings.
The case was tried in the Civil Court of Fulton County by a judge of that court, presiding without a jury, who rendered a judgment for the plaintiff landlord. The defendant's oral motion for a new trial was denied. An appeal was entered to the Appellate Division of the Civil Court of Fulton County, wherein the decision of the trial judge was affirmed, and that judgment is here assigned as error.
1. Upon the trial of this case, the undisputed evidence showed the following facts: Mrs. Williams first rented the premises in question from Mrs. Willie Mae Chafin in 1931 or 1932, and had remained and lived there continuously since that time, paying $10 monthly for the first 5 years; that after this the rent was reduced to $8 monthly. No other agreement or understanding had been entered into by Mrs. Williams with Mrs. Chafin since she entered into possession. She always paid her rent to Mrs. Chafin and continued to do so down through the first two or three months of 1946. Mrs. Chafin never gave her any notice to terminate the tenancy. One Brown notified her that he had bought the place from Mrs. Chafin and she paid him one-month's rent; and in about 4 days, Gassaway, the landlord notified her that he had bought the property and notified her to move. Gassaway demanded $25 per month rent for the premises. She always paid the rent to Mrs. Gassaway. Mrs. Gassaway refused to give her any lease on the premises and no contract was entered into. Mrs. Gassaway continued to accept rent after the expiration of the date set in the notice to terminate the tenancy and up to the date the dispossessory warrant was sued out, which was 4 months later.
The landlord, Gassaway, testified that he was the owner of the premises in question, and that he gave Mrs. Williams 60-days notice to vacate, and demanded possession of the premises on October 23, 1946. Stanford, attorney for the Office of Price Administration testified that a certificate of eviction had been issued authorizing the landlord to evict the tenant in accordance with Georgia law at the expiration of 6 months after April 22, 1946. Counsel for Mrs. Williams admitted that all of the acts of the Office of Price Administration had been done regularly. Nothing was said in regard to the termination of the contract, and there was no agreement or stipulation as to the duration of the tenancy. The agreement as to the rent was that the same should be paid monthly.
Where no time is specified for the termination of a tenancy, the law construes it to be for the calendar year (Code, § 61-104; Willis v. Harrell, 118 Ga. 906 (2), 45 S.E. 794); and the words, "calendar year," mean from January 1 through December 31 next thereafter inclusive. Byrne v. Bearden, 27 Ga. App. 149 ( 107 S.E. 782).
When a tenant, under a contract of rental with a landlord, which provides that the rent is to be paid monthly but specifies no time for the termination of the tenancy, enters lawfully into the possession of the premises, and, after the expiration of the calendar year, remains in possession thereof by permission of the landlord, who continues to receive the rent monthly, a tenancy at will is created. Byrne v. Bearden, supra; Metzer v. Connally Realty Co., 75 Ga. App. 274 ( 43 S.E.2d 169).
In Roberson v. Simons, 109 Ga. 360 ( 34 S.E. 604), which is relied upon by counsel for the plaintiff in error, the contract was by the year and the rent was stipulated and paid annually. In May v. Adair, 22 Ga. App. 217 ( 95 S.E. 733), which is also relied on by counsel for the plaintiff in error, there was a written lease for a term of one year, and after the expiration of the lease the tenants requested a reduction in the rent, and this request was refused by the landlord; and after an agreement that a renewal lease for the ensuing calendar year for the same price might be prepared by the landlord and decided upon later, the tenants remained in possession of the premises; and under these circumstances the contract was held to be for an additional year. After a careful consideration of all of the authorities relied upon by the plaintiff in error, the facts in those cases are found to be distinguishable from the facts in the instant case.
The distinction between the cases which hold that a continuance to accept and pay rent after the expiration of the calendar year constitutes a renovation of the contract for another year, and cases holding that such conduct on the part of the parties creates a tenancy at will, is that in the former class of cases the original contract was either for one year or the rent was stipulated and paid by the year, thus implying a contract for the calendar year. In the latter class, the rent to begin with was paid and accepted by the month. Where the rent is paid by the year, there arises by implication a contract for that year, and a renewal thereof for another year, when after the end of the calendar year the premises are continued to be held and the rent to be paid and accepted. Where the rent is paid and accepted by the month and the termination of the tenancy is not fixed, a tenancy until the end of the first calendar year arises by operation of law; and thereafter, when the tenant retains possession and the rent is paid and accepted, a tenancy at will arises by operation of law. Byrnes v. Bearden, Metzer v. Connally Realty Co., supra.
2. The defendant having failed in her counter-affidavit to deny that a demand had been made upon her for the possession of the premises in question, the question of demand was not put in issue, and a demand will be presumed to have been made in the manner required. Hindman v. Raper, Bowling v. Hathcock, and Minor v. Sutton, supra.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.