Hooks v. Lease , 68 Ga. App. 850 ( 1943 )

Where there is a lease for more than a year, with no provision for extension, and the tenant remains in possession of the premises after the expiration of the term of the lease with the landlord's consent and pays rent, a tenancy at will is created, and the tenant is entitled to two months' notice before the tenancy is terminated. The tenancy here was one at will, and in the absence of the required notice it was not error for the court to direct a verdict for the tenant in the dispossessory-warrant proceeding, and to overrule the landlord's motion for new trial.

DECIDED FEBRUARY 20, 1943. REHEARING DENIED MARCH 11, 1943. T. W. Hooks instituted a dispossessory-warrant proceeding against Aileene L. Lease, in which it was alleged that the tenant failed to pay the rent due on the rented premises and that she was holding over and beyond the term for which the premises were rented to her, and that demand had been made and refused. The controlling facts were undisputed. Hooks leased the premises to the defendant tenant by written lease for a term of sixteen months, beginning May 1, 1939 and ending August 31, 1940. There was no provision in the lease for extending the term. After it expired the tenant continued in possession, with Hook's consent, and continued to pay rent until July 1941. The tenant was not behind in the payment of rent when the dispossessory warrant was sworn out. There was no evidence that two month's notice to vacate the premises was given to the tenant by the landlord. The court directed a verdict for the tenant, stating in his order that the written lease was impliedly renewed for another sixteen months by the conduct of the parties. Hooks excepted to the overruling of his motion for new trial which contained an exception to the direction of the verdict.

The direction of the verdict was proper, but not for the reason given. A lease for more than a year can not be renewed except in writing. Code § 61-102; Walker v. Brooks Simmons Co.Inc., 44 Ga. App. 470 (161 S.E. 659). The occupation of the premises after the expiration of the term constituted the tenant a tenant at will under the facts of the case. The tenant therefore was entitled to two months' notice to vacate. Since no notice was shown to have been given there was no proof that the term was at an end and that the tenant was holding over. While it is true that where a tenant does not deny a demand and refusal thereof such are presumed as of the date of the warrant (Hindman v. Raper, 143 Ga. 643, 85 S.E. 843), the two-months notice is not the demand necessary. Beveridge v.Simmerville, 26 Ga. App. 373 (106 S.E. 212). The notice serves the purpose of terminating the tenancy at will, and the refusal of an additional demand completes the cause of action. The demand is unavailing if there is no duty to surrender possession. The evidence failed to show that the tenant owed rent or was holding over. It was not error to direct a verdict and to overrule the motion for new trial.

Judgment affirmed. Stephens, P. J., and Sutton, J., concur.