METRO MANAGEMENT CO. v. PARKER

Shulman, Judge.

Plaintiff-landlord brought a dispossessory action against defendant-tenant on the ground that the tenant failed to timely pay rent. In addition, plaintiff sought compensatory damages in the amount of rent past due, late charges and court costs. In answer to plaintiffs complaint, defendant alleged that plaintiffs failure to terminate its lease agreement with the defendant prior to its demand for possession of the premises (a condition precedent to the right of the landlord to dispossess) precluded the issuance of a dispossessory warrant to plaintiff. From the grant of defendant’s motion for summary judgment, plaintiff appeals. We affirm.

“A demand upon the tenant to deliver possession of premises to the landlord is a condition precedent to the right of the landlord to dispossess. [Cits.] ‘Demand for possession should be made upon or after the termination of the lease contract. [Cit.]’ ” (Emphasis supplied.) Housing Auth. of Atlanta v. Berryhill, 146 Ga. App. 374 (246 SE2d 406); Baker v. Housing Auth. of Savannah, 152 Ga. App. 64 (2) (262 SE2d 183). See also Code Ann. § 61-301.

Since it is undisputed that plaintiff did not terminate its lease with the defendant either on or before demand for possession was made, the issuance of a dispossessory warrant to plaintiff-landlord was not authorized. See Housing Auth. of Atlanta v. Berryhill, supra. See also Wig Fashions, Inc. v. A-T-O Properties, Inc., 145 Ga. App. 325 (243 SE2d 526). The trial court therefore correctly granted defendant’s motion for summary judgment.

Judgment affirmed.

Deen, C. J., Quillian, P. J., Banke and Birdsong, JJ., concur. McMurray, P. J., Smith, Carley and Sognier, JJ., dissent. Argued April 10, 1980 Decided November 14, 1980 Rehearing denied December 4, 1980 J. Steven Cheatwood, for appellant. James A. Gober, for appellee.