Worried About Collecting On A Judgment Against Your Tenant? Don’t Stress, Distress!

When a tenant is in default, many landlords face a common question: whether pursuing their tenant for a money judgment is worth the extra time and expense.   All experienced landlords know that they can quickly evict a tenant.  However, the extra effort to obtain a money judgment[1] and even more effort to collect on that judgment may or may not be worth it.  In some situations, a distress warrant may solve this dilemma.   

Many landlords and property managers may have performed dozens of evictions, but may have never heard of a distress warrant.  A distress warrant is an accelerated proceeding by a landlord against a tenant to seize the tenant’s leviable property to satisfy rents owed.  Leviable property includes equipment, furniture, machinery – and as one sheriff once reminded me, cows.  This would not include property subject to the process of garnishment, such as bank accounts or wages.

The legal background of a distress warrant begins with the concept that every landlord has a lien against the leviable property of his tenant.[2]  The way to enforce this lien is through a distress warrant.  The process is not extremely complicated, but is riddled with technical requirements and pitfalls for the inexperienced.  Unlike the eviction process, which many non-attorneys pursue successfully, I do not recommend that a non-attorney attempt a distress warrant proceeding.  Let us now discuss some advantages and disadvantages of a distress warrant. 

Advantages

The obvious advantage of a distress warrant is the opportunity to seize the defaulted tenant’s property in order to collect past due rent.  Also, the proceeding is quick.  The court is required to schedule a hearing within five to seven days of service.[3]  At that hearing, the court is obliged to issue a distress warrant (i.e. a command to the sheriff to seize the tenant’s property) if the tenant does not pay what he admits is owed or post a bond.[4] 

Disadvantages

First, the distress warrant procedure is a separate and distinct procedure from a dispossessory (eviction) action.  Therefore, anyone who wishes to both seize their tenant’s property and evict them must file two actions.

Second, for due process reasons, before a distress warrant can issue, the tenant must have both notice and a hearing before he loses possession of his property.[5]  Although the law explicitly commands the tenant not to “convey, remove, or conceal his property” without posting a bond or paying the undisputed rent into the court, this requirement may be ignored by the tenant.[6]  This renders the action impractical in some situations.  

Finally, because these actions have decreased in their popularity, many courts and especially the clerk’s office may be unfamiliar with the legal process.  In my experience, an attorney is needed just to navigate the filing process.

Because of these disadvantages, a distress warrant is most practical in commercial or high-rent residential situations.  However, even with the above disadvantages, a distress warrant is a unique and often successful way for landlords to collect on past due rent.  Next time you have a tenant in default explore this possibility with your attorney. 

Disclaimer: The information contained in this article is for informational purposes only and is not legal advice or a substitute for legal counsel.  It does not constitute advertising or solicitation. The information in this article may or may not reflect the most current legal developments; accordingly, this article is not guaranteed to be complete, and should not be considered an indication of future results.

[1] The most notable extra effort is the requirement of personal service, as opposed to, tack and mail service only.

[2] See O.C.G.A. § 44-14-341.

[3] O.C.G.A. § 44-7-72.

[4] O.C.G.A. § 44-7-75.

[5] Blocker v. Blackburn, 228 Ga. 285, 185 S.E.2d 56 (1971).

[6] See O.C.G.A. § 44-7-75(d).