EFFICIENCY LODGE, INC. v. NEASON

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: June 21, 2023
S22G0838. EFFICIENCY LODGE, INC. v. NEASON, et al.
PINSON, Justice.
The three plaintiffs in this case had each rented rooms at an
extended-stay motel for some time. They fell behind on their rent
and were threatened with immediate eviction. They sued to stop
that from happening, claiming that they were in a landlord-tenant
relationship with the motel and so could not be evicted without dis-
possessory proceedings in court. The motel, however, argued that it
had signed agreements with the plaintiffs that foreclosed their
claims because, among other things, the agreement stated that their
relationship was one of “Innkeeper and Guest,” and “not . . . Land-
lord and Tenant.” The trial court agreed with the plaintiffs, and the
Court of Appeals affirmed. We granted review.
We now vacate the Court of Appeals’ opinion and remand with
direction so that the trial court may determine the parties’ relation-
ship under the proper legal framework, which we set out briefly here
and fully below. The key question for the trial court is whether the
parties created a landlord-tenant relationship. That relationship is
created when a property owner “grants” to another the right “simply
to possess and enjoy the use of” the owner’s property, either for a
fixed time or at the will of the grantor. OCGA § 44-7-1. This grant
can be made expressly in a written agreement, but it may also be
implied from the tenant’s possession of the property with the land-
lord’s consent. As to possession, for reasons we explain below, a per-
son who uses the property as a dwelling place—as their home—can
ordinarily establish actual possession for purposes of showing a
landlord-tenant relationship. As to consent, whether the owner con-
sented to another’s possession is determined by first looking to a
written agreement between the parties if one exists. Evidence of the
parties’ conduct may also be probative if a written agreement is am-
biguous, or to show that the parties changed or mutually departed
from the agreement.
2
We leave it for the trial court to apply this framework in the
first instance, consistent with this opinion.
1. Background
(a) Legal Framework
Two legal relationships are at issue in this case. Both are be-
tween a property owner and a person who occupies that property,
and both are defined by statute. Under either relationship, if the
occupant fails to pay rent, the owner may take steps to remove him.
But the rights of the non-paying occupant depend a great deal on
which relationship he has with the property owner.
The first relationship is that of landlord and tenant. A land-
lord-tenant relationship is created when “the owner of real estate
grants to another person, who accepts such grant, the right simply
to possess and enjoy the use of such real estate either for a fixed time
or at the will of the grantor.” OCGA § 44-7-1 (a). If a tenant “holds
possession of lands or tenements over and beyond the term for which
they were rented or leased to such tenant or fails to pay the rent
3
when it becomes due,” the landlord may make a demand for posses-
sion, OCGA § 44-7-50, and if the tenant does not deliver possession,
the landlord may seek a writ of possession in superior court. OCGA
§ 44-7-49 et seq. In that proceeding, the tenant has rights, too, in-
cluding the rights to assert defenses, to be heard at trial, and to ap-
peal an unfavorable decision. OCGA §§ 44-7-51, 44-7-53, 44-7-56.
These rights cannot be waived by contract. OCGA § 44-7-2 (b).
The second relationship is that of innkeeper and guest. An inn
is a “tavern[ ], hotel[ ], [or] house[ ] of public general entertainment
for guests,” and a guest is “a person who pays a fee to the keeper of
an inn for the purpose of entertainment at that inn.” OCGA § 43-21-
1. Unlike a landlord, an innkeeper does not need to file a writ of
possession to remove a non-paying guest. Instead, the innkeeper
may use a statutory “lockout” remedy when certain conditions are
met: the guest must have signed a written statement “prominently
setting forth in bold type the time period during which [the] guest
may occupy an assigned room,” and the agreed-upon time period
must have expired. OCGA § 43-21-3.2. Under this lockout remedy,
4
“the guest may be restrained from entering such room and any prop-
erty of the guest may be removed by the innkeeper to a secure place
where the guest may recover his or her property without liability to
the innkeeper.” Id.
(b) Facts
Efficiency Lodge advertises as an extended-stay motel: its web-
site invites guests to “Stay a nite or stay forever.” The three plain-
tiffs—Armetrius Neason, Lynetrice Preston, and Altonese Weaver—
each occupied their rooms at the Lodge for months or years. Neason
still stays there, but Preston and Weaver have left.
When the plaintiffs first moved into Efficiency Lodge, they each
signed a rental agreement. Neason and Preston also each signed a
second agreement sometime after moving in. According to Neason,
his second agreement was signed when he moved to a new room
within the Lodge. 1
Preston’s and Neason’s rental agreements each stated that
1 Preston’s initial agreement and Neason’s second agreement were in-
cluded in the record on appeal.
5
“The relationship of Innkeeper and Guest shall apply and not the
relationship of Landlord and Tenant.” Each referred multiple times
to the occupant and the Lodge as, respectively, “Guest” and “Inn-
keeper.” Both agreements also provided that rent was due every
week and that management reserved the right to enter any room
“for the purpose of inspection, housekeeping, maintenance and pest
control.” Both agreements had a space for listing additional occu-
pants of the room, and both provided that “Guest and other occu-
pants listed on rental agreement shall be the only persons who will
reside in rental unit.” Neither agreement listed any additional occu-
pants, although Preston’s daughters and grandson lived in the room
with her. Preston testified that the Lodge told her she did not need
to name her daughters or her grandson on her agreement.
The two agreements addressed the term of occupancy in
slightly different ways. Both agreements included a blank space for
the ending date of occupancy, and on both, the space was left blank.
Neason’s agreement stated that occupants could “rerent on a week
6
to week basis.” Preston’s agreement specified that she was “only al-
lowed to stay for 180 days straight,” after which she would have to
vacate for two days before she could re-rent, although Preston testi-
fied that she lived at the Lodge consistently for two years without
leaving and coming back. Finally, both agreements provided that if
Efficiency Lodge terminated the agreement early for any violation
of the agreement, “Guest shall be responsible for any and all ex-
penses including attorney’s fees and court cost incurred in affecting
the eviction.”
All three plaintiffs say, and the Lodge does not contest, that
they used Efficiency Lodge as their home. Neason received his mail
there, and he listed the Lodge as his address on his driver’s licenses.
Preston—who lived in her room with her teenage daughters and her
grandson—used the Lodge’s address to register her daughters for
school, and the school bus picked them up there. In addition, both
Neason and Preston decorated their rooms and moved in their per-
sonal belongings, including furniture and appliances. Preston also
provided her own linens. The plaintiffs were responsible for cleaning
7
their rooms; the Lodge did not provide them with cleaning or repair
services.
In 2020, during the COVID-19 pandemic, all three plaintiffs
fell behind on their rent. In April 2020, Efficiency Lodge sent a letter
to Preston and Weaver asking that they make arrangements to pay
rent. The letter informed the plaintiffs that “Those guest[s] who
have been with us for over 90 days may no[ ]longer be ‘guest[s],’ you
may be ‘tenants at will.’ This means we may have to go through the
courts to evict you for non-payment. Efficiency Lodge is trying to
avoid this because per your rental agreement YOU will be the one
responsible for all COURT COST[S].” Neason, although he did not
receive a letter, was also led to believe that he could be evicted if he
did not bring his rent current. Weaver ultimately was locked out of
her room, although the other two plaintiffs were not.
(c) Proceedings Below
The three plaintiffs sued. They asked for a permanent injunc-
tion to stop Efficiency Lodge from evicting Neason and Preston with-
out filing dispossessory actions against them, and for damages to
8
compensate Weaver for her past eviction. All three plaintiffs also
asserted a general claim for damages. And they sought a temporary
restraining order and interlocutory injunction to preserve the status
quo while the case proceeded. Efficiency Lodge answered and then
moved for judgment on the pleadings. The trial court held a hearing
on the injunction motion and granted an interlocutory injunction.
The plaintiffs then asked the court to convert it into a permanent
injunction.
In separate orders, the trial court denied the Lodge’s motion
for judgment on the pleadings and granted the permanent injunc-
tion. The trial court noted that the plaintiffs used the Lodge as their
long-term home with the Lodge’s “permission and consent”; that the
Lodge explicitly acknowledged in the April 2020 letter that the
plaintiffs “may be ‘tenants at will’”; and that Georgia law required
the Lodge to pay an “innkeeper tax” only for the first 90 days of the
plaintiffs’ occupancy. 2 Given those circumstances, the trial court
2 Under the part of the tax code dealing with taxes on hotel rooms, an
innkeeper is “[a]ny person that furnishes for value to the public any room or
9
concluded that Efficiency Lodge did not meet the statutory or com-
mon-law definition of an “inn.”
The Court of Appeals affirmed. To determine the parties’ legal
relationship the court looked first to the rental agreements, but it
determined that they were “ambiguous” about the nature of the legal
relationship: the agreements described the relationship as one of
“Innkeeper and Guest,” but they also expressly contemplated evic-
tion actions in court, which is a thing landlords must do to evict ten-
ants. See Efficiency Lodge, Inc. v. Neason, 363 Ga. App. 19, 23 (1) (a)
(870 SE2d 549) (2022); OCGA § 44-7-49, et seq. To resolve this per-
ceived ambiguity, the court focused on Georgia’s innkeeper statutes
rooms, lodgings, or accommodations in a county or municipality and that is
licensed by, or required to pay business or occupation taxes to, such municipal-
ity or county for operating a hotel, motel, inn, lodge, tourist camp, tourist cabin,
campground, or any other place in which room or rooms, lodgings, or accom-
modations are regularly furnished for value.” OCGA § 48-13-50.2 (2) (A). And
under OCGA § 48-8-2 (31) (B), the taxes applicable to charges “for any room,
lodging or accommodation furnished to transients by any hotel, inn . . . or any
other place in which rooms, lodgings or accommodations are regularly fur-
nished to transients for consideration”—that is, taxes on the charges collected
by innkeepers—“shall not apply to rooms, lodgings, or accommodations sup-
plied for a period of 90 continuous days or more.”
10
and two appellate decisions that addressed whether certain resi-
dents of the inns in those cases were guests or tenants. Id. at 25-26
(1) (a) (quoting Bonner v. Welborn, 7 Ga. 296 (1849) and Garner v.
La Marr, 88 Ga. App. 364 (76 SE2d 721) (1953)). Applying that law,
the Court of Appeals noted, among other things, that the plaintiffs
had lived at Efficiency Lodge for a long time with the Lodge’s “per-
mission and consent,” that they brought many personal items with
them, and that both Neason and Preston used the Lodge as their
home address for official purposes. See id. at 26 (1) (a). In the Court
of Appeals’ view, “[n]one of these facts are consistent with the idea
that Efficiency Lodge treated the Plaintiffs as the transient guests
of a hotel as such is understood by a reasonably common person.” Id.
at 27 (1) (a). As a result, the court concluded that the Lodge was
required to go through dispossessory proceedings to evict the plain-
tiffs, and further, that this requirement could not be waived by con-
tract because the plaintiffs had used their rooms as their “perma-
nent dwelling places.” Id. at 27-28 (1) (b).
We granted certiorari to consider, generally speaking, whether
11
and when an extended-stay motel like Efficiency Lodge must go
through dispossessory proceedings to evict occupants who have
stayed there for a long time.
2. Analysis
(a) We begin with a basic but important point: the question we
asked in this case—whether dispossessory proceedings are required
to evict an occupant under these circumstances—turns on whether
the parties’ legal relationship is one of landlord and tenant. If the
parties are in a landlord-tenant relationship, our landlord-tenant
code sets out the landlord’s remedy—and the tenant’s rights—when
a tenant fails to pay rent or stays past a specified rental term. That
remedy is to go to court and get a writ of possession, which author-
izes the landlord to have the tenant evicted by lawful means. See
OCGA §§ 44-7-49, 44-7-50, 44-7-55. And neither that remedy nor the
tenants’ rights in such dispossessory proceedings may be waived.
See OCGA § 44-7-2 (b).
It is true that in a given case, as here, the owner or operator of
a motel might seek to rely on the statutory remedy granted to an
12
“innkeeper” to “restrain” a holdover “guest” from entering his room
under the separate statutory framework that governs inns and their
guests. OCGA § 43-21-3.2. But the question whether this particular
statutory “lockout” remedy is available is separate from the question
whether dispossessory proceedings are required. The lockout rem-
edy is available if the requirements of the lockout statute are met—
i.e., when an “innkeeper” has a “written statement prominently set-
ting forth in bold type the time period during which a guest may
occupy an assigned room, . . . separately signed or initialed by the
guest,” and that time period expires. Id. By contrast, dispossessory
proceedings are required if the operator and occupant are in a land-
lord-tenant relationship.
These inquiries are not necessarily an either/or proposition,
and answering one of these questions does not necessarily answer
the other. To be sure, the landlord-tenant relationship and inn-
keeper-guest relationship are mutually exclusive. See Bonner v.
Welborn, 7 Ga. 296, 307-308 (1849) (treating innkeeper-guest and
landlord-tenant relationships as mutually exclusive). That is, if the
13
parties are in one of those relationships, they cannot be in the other.
As we will explain below, a landlord-tenant relationship is created
when an owner or operator grants the occupant the right of posses-
sion. See OCGA § 44-7-1. This transfer of possession is inconsistent
with the transient, non-possessory relationship of innkeeper and
guest. See id.; OCGA § 43-21-1 (1) (“‘Guest’ means a person who pays
a fee to the keeper of an inn for the purpose of entertainment at that
inn.”). But the reverse is not necessarily true: the absence of a land-
lord-tenant relationship does not necessarily mean that parties are
in an innkeeper-guest relationship (nor does it mean that the spe-
cific statutory conditions for taking advantage of the lockout remedy
are met). By the same token, the absence of an innkeeper-guest re-
lationship does not prove the landlord-tenant relationship that is
the basis for requiring dispossessory proceedings to evict an occu-
pant.
Here, the question we asked in granting review was whether
an extended-stay motel must go through dispossessory proceedings
to evict occupants who had stayed there for a long period of time. We
14
asked that particular question because it is the question this case
squarely presents: the plaintiffs here sought a declaration that they
are in a landlord-tenant relationship with Efficiency Lodge and an
injunction that would prevent Efficiency Lodge from evicting them
without initiating dispossessory proceedings. Because the question
whether the plaintiffs are entitled to that relief turns on whether
they are in a landlord-tenant relationship with the Lodge, we turn
to the landlord-tenant relationship now.
(b) The relationship of landlord and tenant is a legal relation-
ship defined by statute. That statute says this relationship is cre-
ated when “the owner of real estate grants to another person, who
accepts such grant, the right simply to possess and enjoy the use of
such real estate either for a fixed time or at the will of the grantor.”
OCGA § 44-7-1 (a). This has been the way to create a landlord-ten-
ant relationship in Georgia for quite a long time. See Code Ann. 1860
§ 2261 (“When the owner of lands grants to another simply the right
to possess and enjoy the use of such lands, either for a fixed time or
15
at the will of the grantor, and the tenant accepts the grants, the re-
lation of landlord and tenant is created.”); Irwin’s Code Rev. 1867
§ 2253; Irwin’s Code Rev. 1873 § 2279; Code Ann. 895 § 3115; Code
Ann. 1910 § 3691.
The focus here is on the transfer of the right of possession—the
grant by the owner and acceptance by another—that is the hallmark
of a landlord-tenant relationship. See, e.g., Camp v. Delta Air Lines,
Inc., 232 Ga. 37, 39 (205 SE2d 194) (1974) (explaining that the “car-
dinal rule” in determining whether an agreement creates a lease-
hold or an estate for years is to scrutinize the agreement “to ascer-
tain what interest the parties intended to be conveyed or demised by
it”). See also Restatement (Second) of Property, Land. & Ten. § 1.2
& Reporter’s Note (1977) (reciting as blackletter law that “[a] land-
lord-tenant relationship exists only if the landlord transfers the
right to possession of the leased property” and noting that this is
“undoubtedly accepted dogma in this field of the law”). In particular,
the question here is how to determine whether that transfer hap-
pened.
16
The short answer is that the intent of the parties controls. Be-
cause transferring the right to possession requires a grant by the
owner and acceptance by another, OCGA § 44-7-1, we look to “the
intention of the parties” to see whether the right was transferred,
such that the relationship of landlord and tenant was created. Potts-
Thompson Liquor Co. v. Potts, 135 Ga. 451, 456 (69 SE 734) (1910).
See also Plank v. Bourdon, 173 Ga. App. 391, 394 (2) (326 SE2d 571)
(1985) (“In distinguishing between a purported lease and an execu-
tory agreement to make a lease, the intention of the parties, as man-
ifested by a writing, is a controlling element.”); Orr v. Neilly, 67 F2d
423, 424 (5th Cir. 1933) (“[W]hether the relationship of landlord and
tenant is created depends almost entirely upon the intention of the
parties.”) (citing Potts-Thompson Liquor Co., 135 Ga. 451).
Discerning the parties’ intent to create a landlord-tenant rela-
tionship is easiest when the parties transfer the right of possession
expressly. In other words, the required transfer of the right of pos-
session may be clearly established by express agreement. See, e.g.,
Clayton Cty. Bd. of Tax Assessors v. Aldeasa Atlanta Joint Venture,
17
304 Ga. 15, 16-17 (1) (815 SE2d 870) (2018) (agreement that
“granted a five-year term of possession” of property created land-
lord-tenant relationship); Ouseley v. Foss, 188 Ga. App. 766, 767
(374 SE2d 534) (1988) (describing a “written lease transferring right
of possession in a certain portion of property”); see also Langley v.
MP Spring Lake, LLC, 307 Ga. 321, 325-326 (834 SE2d 800) (2019)
(concluding that an agreement entitled “Apartment Lease Con-
tract,” which granted to one party the right to rent an apartment
“‘for use as a private residence,’” “demonstrate[d] the parties’ clear
intent to create a landlord-tenant relationship”).
But even without an express agreement, the parties’ intent to
transfer the right of possession may be discerned through evidence
from the parties’ arrangement and the circumstances as a whole.
See Littleton v. Wynn, 31 Ga. 583, 585 (1860) (recognizing that a
landlord-tenant contract may be “either express or implied”);
McCullough v. Reyes, 287 Ga. App. 483, 486 (1) (651 SE2d 810)
(2007) (“neither a lease agreement nor the payment of rent is re-
quired for a landlord-tenant relationship to exist”). See also OCGA
18
§ 44-7-5 (“When . . . title is shown in the plaintiff and occupation by
the defendant is proved, an obligation to pay rent is generally im-
plied.”); Restatement (Second) of Property, Land. & Ten. § 1.2, cmt.
a (“Whether an arrangement between two parties with respect to
leased property transfers to one of them the right to possession of
the property depends on the intention of the parties, as revealed by
the terms of their arrangement and the circumstances.”). The requi-
site intent may be shown in this way with evidence that establishes
that (i) a person is in actual possession of the property in question,
(ii) with the owner’s consent. See Hawkins v. Tanner, 129 Ga. 497(59 SE 225) (1907) (“the relation of landlord and tenant exists where
one person occupies the land or premises of another in subordination
of the other’s title and with his consent, express or implied”) (quoting
18 Am. & Eng. Enc. Law (2d ed.) 164-165); Sharpe v. Mathews, 123
Ga. 794, 797-798 (51 SE 706) (1905) (“as a general rule, it is suffi-
cient to create the relation [of landlord and tenant] if it appears to
have been the intention of one to enter or occupy the premises in
subordination to the title of the other”); Littleton, 31 Ga. at 585
19
(landlord-tenant contract “presumed from the title of the [landlord]
and the possession of the other,” and the presumption is “rebutted
when it appears that the tenant does not hold under, but adversely
to him who holds the title”); S.S. Air., Inc. v. City of Vidalia, 278 Ga.
App. 149, 150 (1) (628 SE2d 117) (2006) (airline was tenant of city,
despite lack of formal lease agreement, when airline occupied city
land and built hangar on it with city’s permission); Daniel F. Hinkel,
2 Pindar’s Ga. Real Estate Law & Procedure § 11.3 (7th ed., Apr.
2023 update) (“Mere possession of the land of another will raise a
presumption of tenancy. Such a presumption, however, is rebutted
by proof that the occupant did not enter with the owner’s consent or
is holding adversely to him.” (footnote omitted)).3 Put simply, actual
possession establishes the would-be tenant’s acceptance of posses-
3 A handful of early cases spoke in terms of a tenant’s “occupation” rather
than “possession” of the premises. See, e.g., Hawkins v. Tanner, 129 Ga. 497(59 SE 225) (1907). It is not apparent from these decisions that those terms
were used to mean different things, and given the clear and unchanging stat-
utory language requiring a transfer of the “right to possess and enjoy the use”
of the property, we do not read these decisions as deviating from the well-es-
tablished understanding that a transfer of the right of possession is required.
20
sion, while the owner’s consent establishes that the right to that pos-
session was in fact granted. See OCGA § 44-17-1. We take each con-
cept in turn.
(i) Possession is an important legal concept throughout prop-
erty law. See Thrasher v. City of Atlanta, 178 Ga. 514, 529 (173 SE
817 (1934) (“Possession is the basis of all ownership.”); Restatement
(First) of Property § 7, cmt. (1936) (“There are many aspects of the
law of real property that involve a consideration of these doctrines
of constructive and actual possession.”). Speaking generally, posses-
sion involves a physical relationship with and the exercise of suffi-
cient acts of ownership and control with respect to the subject prop-
erty. See, e.g., Page v. Jones, 186 Ga. 485, 491-492 (3) (198 SE 63)
(1938) (actual possession of property could be established by person
who “resided” on the property and “exercised acts of ownership over
the property”); Hadaway v. Smedley, 119 Ga. 264, 269 (2) (46 SE 96)
(1903) (noting that “evidences of [a person’s] possession” of land in-
cluded that he “resided upon the place and exercised acts of owner-
ship and control”); Restatement (First) of Property § 7 (“A possessory
21
interest in land exists in a person who has (a) a physical relation to
the land of a kind which gives a certain degree of physical control
over the land, and an intent so to exercise such control as to exclude
other members of society in general from any present occupation of
the land; or (b) interests in the land which are substantially identi-
cal with those arising when the elements stated in Clause (a) ex-
ist.”). But we need not (and do not) try here to define the contours of
possession for all purposes. It is enough to say that when looking for
a landlord-tenant relationship in a residential context, possession is
ordinarily established when a person does a collection of things we
normally associate with using the subject property as her dwelling
place—as her home.
Using property as a home ordinarily establishes possession be-
cause the kinds of acts associated with using property as a home
match up with traditional hallmarks of possession. As a general
matter, possession may be shown through “acts of ownership and
control,” including a physical relationship to the property. Hadaway,
22
119 Ga. at 269 (2) (explaining that a person is evidently in posses-
sion of land when she “exercise[]s acts of ownership and control” over
the land). See also Wood v. McGuire, 15 Ga. 202, 204 (1) (1854) (“pos-
session must be constituted, either by residence on the land in per-
son…accompanied with the exercise of ownership; or by cultivation
of a portion of the land, accompanied by acts of ownership over the
balance, or it must consist of acts of ownership, ‘positive, definite,
and notorious’”). See also Restatement (First) of Property § 7.4 When
someone uses property as a home—not just a place to sleep or stay
for a short time—such use is marked by various acts of ownership
4 Many of our cases addressing possession as a legal concept come from
the law of adverse possession. Adverse possession is different from tenancy in
one important way: by definition, it happens without the consent of the land-
owner. See OCGA § 44-5-161 (b) (clarifying that “[p]ermissive possession can-
not be the foundation of” adverse possession); Coates v. Jones, 142 Ga. 237, 240
(82 SE 649) (1914) (explaining that a tenant cannot assert an adverse-posses-
sion claim on the property he occupies as a tenant). But because both adverse
possession and tenancy involve the actual possession of property by someone
who does not hold title to it, see MEA Family Investments, LP v. Adams, 284
Ga. 407, 408 (667 SE2d 609) (2008) (adverse possession of property extends
only to the area of “actual possession”); Hall v. Gay, 68 Ga. 442, 443 (1882)
(“[a]ctual adverse possession of land by itself for twenty years gives a good title
by prescription…No paper title is necessary, nothing but actual bona fide pos-
session, this is all which the law requires”) (citation and punctuation omitted),
the law of adverse possession is a useful comparator for guidance on what it
means for a tenant to be in possession of property.
23
and control. Making a place home means maintaining a relatively
continuous physical presence—both in person and with personal ef-
fects. It also typically means performing routine cleaning and
maintenance; adding, removing, or altering fixtures, furnishings,
and decor; and keeping belongings there. And importantly for pur-
poses of showing possession, it means controlling access to the prop-
erty by others: deciding whom to invite in as guests, see Cham v.
ECI Mgmt. Corp., 311 Ga. 170, 185 (856 SE2d 267) (2021) (Peterson,
J., dissenting) (“The authority to host guests in your home is for
many people a key element of what it means for a home to be
yours.”), and whom to keep out, using locks and any number of other
security measures to protect one’s privacy and safety, see Geor-
giaCarry.Org, Inc. v. Atlanta Botanical Garden, Inc., 306 Ga. 829,
844 (834 SE2d 27) (2019) (Peterson, J., concurring) (describing the
right to exclude others from one’s property as “‘one of the most es-
sential sticks in the bundle of rights that are commonly character-
ized as property’”) (quoting Dolan v. City of Tigard, 512 U.S. 374,
393 (114 SCt 2309, 129 LE2d 304) (1994)). Put simply, the physical
24
relationship with and conduct towards property that is typical of
making a place home are just the kinds of “acts of ownership and
control” that establish possession. See, e.g., Ammons v. Central of
Ga. Ry. Co., 215 Ga. 758, 761 (1) (113 SE2d 438) (1960) (noting that
“[a] tenant of premises . . . is the owner of its use for the term of his
rent contract”); Bentley v. City of Atlanta, 92 Ga. 623, 627 (1) (18 SE
1013) (1893) (“A tenant, although he has no estate in the land, is the
owner of its use for the term of his rent contract[.]”) (citing 12 Am.
& Eng. Enc. Law 719); Wood, 15 Ga. at 204 (1) (explaining that pos-
session may be “constituted . . . by residence on the land in person”);
Kahn v. Britt, 330 Ga. App. 377, 391-392 (7) (765 SE2d 446) (2014)
(landlord-tenant relationship could exist when would-be tenant was
“allowed to stay” at property and “kept personal property there” but
did not pay rent or sign a lease); McCullough, 287 Ga. App. at 486(landlord-tenant relationship established where, in return for caring
for property owner’s father, tenant was given “a place for her family
to live” in a separate house on the property).
The idea that using property as a home ordinarily establishes
25
possession finds clear support in our landlord-tenant statutes and
decisional law, too. The statutes contemplate that someone using
property as a dwelling place is in possession of it: they carve out for
special treatment a subset of landlord-tenant relationships where
the tenant uses, occupies, or rents the property as a “dwelling place.”
See, e.g., OCGA § 44-7-2 (b) (“[i]n any contract, lease, license agree-
ment, or similar agreement, oral or written, for the use or rental of
real property as a dwelling place, a landlord or a tenant may not
waive, assign, transfer, or otherwise avoid any of the rights, duties,
or remedies” enumerated in other parts of the Code) (emphasis sup-
plied); id. § 44-7-4 (a) (allowing municipalities to establish security
standards “to prevent the unauthorized entry of premises occupied
by a tenant as a dwelling place”) (emphasis supplied). Implicit in
that carve-out is the understanding that when someone uses the
property as a dwelling place with the owner’s permission, the right
to possess and enjoy the property has been transferred. And con-
sistent with this understanding, our decisions have equated the use
of a property as a dwelling place with possession. See Ammons, 215
26
Ga. at 761 (1), 763 (7) (approving an injunction preventing a railway
from “interfering with the occupancy and possession by the tenant .
. . of the dwelling house which she occupies”); Mackenzie v. Minis,
132 Ga. 323, 330-331 (63 SE 900) (1909) (explaining that if a servant
is a “tenant of his master,” in that he has both a contract of employ-
ment and a separate “contract to rent a dwelling” belonging to the
master, the servant may keep his contractual “right to retain pos-
session of the premises” even if the employment contract ends);
Wood, 15 Ga. at 204 (1).
Two caveats. First, possession is not established by a person’s
mere subjective belief that a property is or was her home. When we
talk about using property as a dwelling place, it is shorthand for a
collection of acts of ownership and control that is generally sufficient
to establish possession in the residential context—but one still needs
to provide evidence of those acts, which remain the touchstone of
possession as a general matter. See, e.g., Hadaway, 119 Ga. at 269(2); Wood, 15 Ga. at 204 (1) (1854). Second, none of this is to say that
27
using property as a dwelling place is the only way to establish pos-
session. Not all tenants are residential tenants, and a commercial
tenant, by contrast, ordinarily would possess property without living
there. See, e.g., S.S. Air, 278 Ga. App. at 150 (1) (airline possessed
land by building hangar on it). But sufficient evidence of conduct
showing that the property is being used as a dwelling place ordinar-
ily suffices to establish possession in the residential context.
(ii) As for consent, the question is simply whether the would-be
tenant is in possession of the property with the owner’s permission.
As with the broader question whether the right of possession was
transferred, consent to possession may be express or implied. See
Hawkins, 129 Ga. at 497 (“‘the relation of landlord and tenant exists
where one person occupies the land or premises of another in subor-
dination of the other’s title, and with his consent, express or im-
plied’”) (quoting 18 Am. & Eng. Enc. Law (2d ed.) 164-165); Daniel
F. Hinkel, 2 Pindar’s Ga. Real Estate Law & Procedure § 11.1 (7th
ed., Apr. 2023 update) (specifying that landlord’s consent may be
“express or implied”).
28
Where to look for this consent? If the parties have a written
agreement respecting the property (as here), the search starts there.
Even an agreement between the parties that does not expressly
transfer the right to possess and use the property may shed light on
whether the owner intended to allow the other party to possess the
property. Indeed, the agreement may well allow, or prohibit, just the
kinds of acts of ownership and control that can establish possession.
For instance, an agreement could require a renter to take responsi-
bility for the security of people and personal items inside, provide
his own furniture, take out the trash, and keep the premises clean,
or it might give him authority to invite in or exclude others from the
property—acts consistent with possession. On the other hand, the
agreement could prohibit the occupant from making any alterations,
performing maintenance, or having visitors, or it might restrict the
hours at which the occupant can come and go, thus suggesting the
opposite. In this inquiry, substance generally prevails over form;
mere labels or talismanic language in an agreement are not dispos-
itive, at least not by themselves. See Atlanta Bread Co. Intl. v.
29
Lupton-Smith, 285 Ga. 587, 589 (2) (679 SE2d 722) (2009) (looking
to substance of contractual clause, “no matter the nomenclature as-
signed” to it, to determine whether it was a restrictive covenant);
Houston Gen. Ins. Co. v. Brock Constr. Co., Inc., 241 Ga. 460, 465
(246 SE2d 316) (1978) (Undercofler, P.J., concurring) (“You can call
a camel an elephant but that won’t make its hump disappear. Labels
do not change substance.”); Wolkin v. Nat. Acceptance Co., 222 Ga.
487, 489 (150 SE2d 831) (1966) (“mere nomenclature” of contract
stating it was a guaranty was not determinative when in substance
contract was clearly one of suretyship). If an agreement between the
parties plainly establishes consent (or lack thereof), that may be the
end of the matter. See Langley, 307 Ga. at 324 (“When the terms of
a contract are clear and unambiguous, the reviewing court looks
only to the contract itself to determine the parties’ intent.”); Terry v.
State Farm Fire & Cas. Ins. Co., 269 Ga. 777, 778 (2) (504 SE2d 194)
(1998) (“If the language of a contract is clear and unambiguous, the
terms of the agreement are controlling and an appellate court should
look no further to determine the intention of the parties.”); see also
30
OCGA § 13-2-3 (providing that if a contract makes clear the parties’
intention and the intention “contravenes no rule of law,” the inten-
tion “shall be enforced”).
But there are a few reasons a court may need to look beyond a
written agreement. First, if the agreement leaves the parties’ inten-
tions ambiguous, extrinsic or parol evidence is “admissible to ex-
plain all ambiguities, both latent and patent.” OCGA § 24-3-3 (b).
See Coppedge v. Coppedge, 298 Ga. 494, 498 n.3 (1) (783 SE2d 94)
(2016) (citing rule that “‘if the contract contains an ambiguity that
cannot be resolved through the rules of construction, the court may
. . . consider parol evidence’”); Armistead v. McGuire, 46 Ga. 232, 235
(1872) (citing earlier, materially identical version of OCGA § 24-3-3
for the proposition that “the surroundings and understandings of the
parties [to a contract] may be used to explain and discover the true
meaning in doubtful cases”). In this context, that outside evidence
could include the parties’ course of conduct, see Scruggs v. Purvis,
218 Ga. 40, 42 (126 SE2d 208) (1962) (“The construction placed upon
a contract by the parties thereto, as shown by their acts and conduct,
31
is entitled to much weight and may be conclusive upon them.”),
which could show, for instance, that a property owner knew about
and allowed a renter to do things consistent with possession—deco-
rating and furnishing the premises, taking on responsibility for
cleaning and maintenance, entertaining houseguests, changing the
locks—or that the owner discouraged or was unaware of these or
other acts of ownership or control. Or, under certain circumstances,
outside evidence could include oral agreements, see Preferred Risk
Mut. Ins. Co. v. Jones, 233 Ga. 423, 425 (1) (211 SE2d 720) (1975)
(oral agreements admissible to resolve ambiguity if oral agreement
is not inconsistent with written contract and parties did not intend
contract to encompass “the whole of the transactions between
them”), which could include the parties’ representations about the
meaning of contractual terms.
And even if a written agreement is clear on its face, outside
evidence may also be relevant to show the parties’ changed inten-
tions after the agreement is signed. Such evidence could show that
the parties intended to modify their written agreement, see Hanham
32
v. Access Management Group L.P., 305 Ga. 414, 417 (3) (825 SE2d
217) (2019) (“parties may modify a contract through course of con-
duct” that is supported by consideration and not prohibited by the
contract or by law); Am. Century Mortg. Investors v. Bankamerica
Realty Investors, 246 Ga. 39, 40 (2) (268 SE2d 609) (1980) (later oral
agreement can modify the terms of a contract if it is supported by
consideration), or that they intended to mutually depart from some
of its terms, see Hughes v. Great Southern Midway, Inc., 265 Ga. 94,
95 (1) (454 SE2d 130) (1995) (parties mutually departed from closing
date in real estate contract by extending it until zoning issue was
resolved).5 In the case of a property rental, such evidence might
show the parties modified or mutually departed from a term of the
rental agreement by continuing to possess (and allowing the contin-
ued possession of) the premises, and continuing to pay (and accept-
5The parties’ later course of conduct can even “operate to waive an oth-
erwise validly enforceable written requirement that all modifications be in
writing.” See Hanham v. Access Management Group L.P., 305 Ga. 414, 417 (3)
n.2 (825 SE2d 217) (2019).
33
ing the payment of) rent, after the written term of occupancy ex-
pired. See OCGA § 44-7-5 (“[w]hen…title is shown in the plaintiff
and occupation by the defendant is proved, an obligation to pay rent
is generally implied”).
Finally, evidence of the parties’ conduct comes to the forefront
in the absence of an express agreement between them. See, e.g.,
McCullough, 287 Ga. App. at 486 (1) (noting that a landlord-tenant
relationship may exist even without a lease agreement). In that cir-
cumstance, the inquiry would reduce to the ultimate question
whether the owner’s conduct towards the party in possession of the
property—including the kinds of evidence just discussed above—es-
tablishes that the possession was with the owner’s permission ra-
ther than adverse.6
6 A final note. The Court of Appeals below, relying on its own precedent,
indicated that “‘[w]hether a landlord-tenant relationship exists is a question of
fact.’” Efficiency Lodge, 363 Ga. App. at 23 (1) (citing Williams v. State, 261 Ga.
App. 511, 513 (1) (583 SE2d 172) (2003)). We overrule this precedent, because
properly understood, the question whether a landlord-tenant relationship has
been created is a mixed question of fact and law. The transfer of the right of
possession is established by reference to historical facts—for example, evidence
that a renter installed locks or put up a fence, or that the property owner told
her he would allow her to live there. But the ultimate question is not merely
34
what happened in the real world, but whether what happened is properly char-
acterized as a “grant[ ]” and “accept[ance]” of “the right simply to possess and
enjoy the use of” the property. OCGA § 44-7-1. Such questions, which require
a nuanced judgment whether given historical facts meet or add up to an ab-
stract legal concept or standard—a “landlord-tenant relationship,” or “adverse
possession,” or “domicile,” for instance—are mixed questions of law and fact.
See, e.g., Am. Civil Liberties Union, Inc. v. Zeh, 312 Ga. 647, 665-666 (3) (864
SE2d 422) (2021) (in defamation actions, whether someone is a public official
is a mixed question of law and fact because it is determined on a case-by-case
basis whether the facts of the person’s position make it “one which would invite
public scrutiny and discussion of the person holding it”) (punctuation and cita-
tion omitted); Harvey v. Merchan, 311 Ga. 811, 820 & n.9 (2) (b) (ii) (860 SE2d
561) (2021) (question whether statute of limitations barred action, which
turned in part on when defendant had “becom[e] aware” of her injuries, was
mixed question of law and fact); Dozier v. Baker, 283 Ga. 543, 544-545 (2) (661
SE2d 543) (2008) (question of person’s domicile is mixed question of law and
fact). See also Harry T. Edwards & Linda A. Elliott, Federal Courts Standards
of Review: Appellate Court Review of District Court Decisions and Agency Ac-
tion 8 (3d ed. 2018) (mixed questions of law and fact require “nuanced assess-
ment or characterization of the historical facts in light of the governing legal
norms”).
We do not address here, however, the precise division of labor for judge
and factfinder in determining whether a landlord-tenant relationship is pre-
sent. We have said that some mixed questions are ordinarily for the factfinder,
but may be determined by the court as a matter of law when the evidence is
undisputed or the answer to the question is “plain and palpable.” Dozier, 283
Ga. at 544 (2). See also, e.g., Harvey, 311 Ga. at 820 n.9 (2) (b) (ii); Pirkle v.
Turner, 281 Ga. 846, 848 (2) (642 SE2d 849) (2007) (adverse possession is “usu-
ally a mixed question of law and fact” where “jury decides whether the claimant
has presented sufficient evidence to establish the elements of adverse posses-
sion”). Other times, as when the mixed question is a “fact-intensive, mixed
question[ ] of constitutional law,” the ultimate mixed question may be for the
judge to answer (and when reviewing the mixed question on appeal, although
we accept the trial court’s underlying factual findings unless they are clearly
erroneous, we “independently apply the law to the facts”). State v. Gilmore, 312
Ga. 289, 292 (2) (a) (862 SE2d 499) (2021) (quoting Lilly v. Virginia, 527 U.S.
116, 136-137 (119 SCt 1887, 144 LE2d 117) (1999)). But these decisions have
not explained this different treatment of mixed questions, nor have we set out
a consistent framework for determining when mixed questions of law and fact
35
3. Application and Disposition
On to this case. Neither court below had the benefit of the an-
alytical framework we set out above. So, although each court circled
around some of the right questions with respect to the landlord-ten-
ant relationship—for instance, the Court of Appeals noted that Nea-
son and Preston lived at the Lodge with the Lodge’s “permission and
consent”—neither court assessed the legal significance of any such
findings or conclusions under the legal framework we have set out
above. Instead, both courts conflated that question to some degree
with the separate question whether the parties’ relationship was one
of innkeeper and guest and at times seemed to treat the questions
as fully interchangeable: if the parties were not innkeeper and
guest, then they must be landlord and tenant. See, e.g., Efficiency
are decided by the judge or the factfinder. Compare Edwards & Elliot, supra
at 8, 14, 17-18 (explaining that a federal appellate court reviewing a mixed
question of law and fact “should consider the nature of the decisional process
implicated in light of the respective institutional strengths” of trial courts,
which can weigh the credibility and demeanor of witnesses and articulate his-
torical facts, and appellate courts, which can exercise “reflective dialogue” and
“collective judgment” to clarify legal principles). We leave these questions for
another day because we do not need to resolve them here: the trial court served
as both judge and factfinder below, and will continue to do so on remand.
36
Lodge, 363 Ga. App. at 27 (explaining that the Lodge was required
to initiate dispossessory proceedings because the facts were not “con-
sistent with the idea that Efficiency Lodge treated the Plaintiffs as
the transient guests of a hotel”). But as we noted above, the two
questions are not strictly either/or in nature. A landlord-tenant re-
lationship is created by the transfer of the right of possession, see
OCGA § 44-7-1, while the innkeeper-guest relationship is marked by
payment of a fee “for the purpose of entertainment at” an inn, OCGA
§ 43-21-1. See also OCGA § 43-21-1 (2) (defining an “inn” as a “tav-
ern[],” “hotel[]”, or “house[] of public general entertainment”). To be
sure, a transfer of the right of possession is inconsistent with the
transitory, fee-for-entertainment relationship of innkeeper and
guest, so proving that the parties are in one of these relationships
would prove that they are not in the other.7 But applying the appro-
priate legal standard and proving that the parties are not in one of
7 The Restatement (Second) of Property offers a helpful illustration of
the point that a true innkeeper-guest relationship does not involve any trans-
fer of the right to possession. If a person with a hotel reservation arrives to find
37
these relationships does not necessarily prove that they are in the
other one. For example, our innkeeper statutes provide that “[p]er-
sons entertaining only a few individuals, or simply for the accommo-
dation of travelers, are not innkeepers but are depositories for hire
and are bound to ordinary diligence.” OCGA § 43-21-2. Someone who
qualifies as a depository for hire under this provision is not an inn-
keeper, but neither are they likely a landlord to travelers passing
through. The point is that each inquiry must be conducted sepa-
rately to ensure that the proper legal test is applied to determine
whether the asserted relationship exists.
Because we are generally a court of review, we leave it to the
trial court in the first instance to apply the legal framework we have
set out here to the facts of this case. See Ga. Const. of 1983, Art. VI,
Sec. VI, Para. II (“The Supreme Court shall be a court of review . . .
that her reserved room is occupied, neither she nor the hotel would contem-
plate that she has a remedy against the other occupant. Instead, the hotel can
just offer her another room. This is because she was not granted a right to
possess a particular room but, in the words of Georgia’s statute, paid a fee for
the purpose of entertainment at the inn. See Restatement (Second) of Property,
Land. & Ten. § 1.2, Illustration 1 (1977); OCGA § 43-21-1.
38
.”); Wallace v. Wallace, 301 Ga. 195, 198-200 (II) (800 SE2d 303)
(2017) (declining to make findings of fact and conclusions of law in
the first instance, and remanding for trial court to do so). To that
end, we vacate the Court of Appeals’ decision with direction to va-
cate the trial court’s orders and remand for further proceedings.
On remand, the question whether the parties created a land-
lord-tenant relationship turns on whether Efficiency Lodge
“granted” to the plaintiffs the right “simply to possess and enjoy the
use of” their rooms. OCGA § 44-7-1 (a). To answer that question, the
trial court should apply the legal framework we have laid out here.
If the grant was not made expressly, the trial court should determine
whether the transfer of the right of possession is properly implied
based on the evidence, including the written agreement and, if nec-
essary, the parties’ conduct relevant to the questions of possession
and consent.
Consistent with this opinion, the parties’ written rental agree-
ments are the place to start. Although we do not reach any conclu-
sions here as to the effect of those agreements, we note that each one
39
says that “the relationship of Innkeeper and Guest shall apply and
not the relationship of Landlord and Tenant.” As we explained
above, the substance of the relationship controls “no matter the no-
menclature assigned” to it, Atlanta Bread Co., 285 Ga. at 589. But
this language may well be evidence of the parties’ intent not to trans-
fer the right of possession to the plaintiffs or to consent to their pos-
session, at least at the time the agreement was signed. It is up to
the trial court on remand to determine the weight to give this and
other language in the agreement, as well as the other evidence in
the record, in its analysis.
If the trial court concludes that the Lodge was in a landlord-
tenant relationship with any plaintiff, then the Lodge will need to
obtain a writ of possession to evict that plaintiff. If the trial court
concludes that the Lodge was not in a landlord-tenant relationship
with any particular plaintiff, the court may revisit the separate
questions whether the parties were in an innkeeper-guest relation-
ship and, if so, whether Efficiency Lodge could properly take ad-
vantage of the “lockout” remedy granted to innkeepers under the
40
conditions set out in OCGA § 43-21-3.2.
Judgment vacated and case remanded with direction. All the
Justices concur.
41