MCFADDEN, P. J., MCMILLIAN and GOSS, JJ.
McFADDEN, PRESIDING JUDGE.
case involves a residential lease agreement with an option to
purchase between Tela Investments, LLC and Ehsan Razavi. The
trial court granted Razavi's motion for summary judgment
as to Tela's dispossessory action and claim for attorney
fees under a lease provision, denied summary judgment to Tela
as to Razavi's breach of contract and other
counterclaims, and ordered Razavi to pay the option purchase
price into the registry of the court. Because there are no
genuine issues of material fact as to Tela's claims, but
there are genuine issues of material fact as to Razavi's
counterclaims, we affirm the trial court's summary
judgment rulings. And because ordering the payment of the
option purchase price into the court registry defeats the
parties' intent, we reverse that portion of the order.
Facts and procedural posture.
judgment is warranted when there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. On appeal from the grant or denial of
summary judgment, we conduct a de novo review, with all
reasonable inferences construed in the light most favorable
to the nonmoving party." Parke Town North Apartments
v. Castro, Ga.App. (1) (824 S.E.2d 730) (2019) (citation
and punctuation omitted).
construed, the evidence shows that in March 2009, Tela and
Razavi entered into a residential lease agreement with an
option for Razavi to purchase the house. The agreement
provided that Razavi would pay a base monthly rental amount
of $799, plus an additional rental amount based upon property
taxes and hazard insurance. The residential lease agreement
was amended in November 2014 to provide, among other things,
that Razavi could exercise the option to purchase the
property for $138, 000 at any time prior to the expiration of
the lease on May 30, 2017.
October 21, 2016, counsel for Tela notified counsel for
Razavi that the lease agreement was terminated because Razavi
had failed to make required payments totaling $2, 919. On
November 1, 2016, Razavi delivered two checks to Tela's
attorney, one check for the claimed arrearage of $2, 919 and
another for the November rent of $799. On November 30, 2016,
Tela filed and served an affidavit for a dispossessory
warrant, claiming that Razavi was still in possession of the
house following Tela's termination of the lease. Razavi
answered and counterclaimed for, among other things, breach
of contract, specific performance, and fraud.
January 11, 2018, Razavi filed a motion for summary judgment
as to Tela's dispossessory action and claim for attorney
fees, and Tela subsequently filed a motion for summary
judgment as to Razavi's counterclaims. After a hearing,
the trial court granted Razavi's motion, denied
Tela's motion, and ordered Razavi to pay the full option
purchase price of $138, 000 into the court registry. Tela
appeals in Case No. A19A0200, challenging the trial
court's summary judgment rulings; and Razavi
cross-appeals in Case No. A19A0201, challenging the trial
court's order that he deposit the option purchase price
into the registry of the court.
contends that the trial court erred in granting summary
judgment to Razavi on its dispossessory action. We disagree.
Where a lessee has breached a lease, the lessor is authorized
to rescind the lease and summarily dispossess the lessee as a
tenant holding over. . . . When a tenant fails to discharge
his obligations under the lease, the landlord has the right,
created by the lease itself, to terminate the lease. Once the
landlord terminates the lease and the tenant refuses to
vacate, the tenant becomes a tenant holding over beyond the
term of the lease. The landlord has the right, at that point,
to institute dispossessory proceedings . . . by making demand
C & A Land Co. v. Rudolf Inv. Corp., 163 Ga.App.
832, 833 (296 S.E.2d 149) (1982) (citations omitted). Thus,
the evidence in the instant case, construed in Tela's
favor, supports Tela's right to seek to terminate the
lease due to Razavi's alleged failure to make payments as
required by the lease.
However, if the lessor wishes to declare a forfeiture of the
lease for nonpayment it is incumbent upon the lessor to
return immediately upon receipt thereof any and all payments
of rental received by the lessor after the happening of the
event giving the landlord the right to declare the
forfeiture. . . . Acceptance and retention of rentals by the
lessor after the alleged breach or forfeiture constitutes a
waiver and reinstates the lease. The fact that the lessor
does not cash the check is immaterial. Assertions of
forfeiture for nonpayment and retention of rentals are
totally incompatible, and the lessor must take the effect of
that which is most favorable to the tenant. In cases of
doubt, in contests between landlords and tenants, the issue
will be resolved in favor of the tenant.
Id. at 833-834 (citations and punctuation omitted).
Tela accepted and retained Razavi's checks for the
claimed arrearage after purportedly terminating the lease. So
the trial court correctly found that Razavi was entitled to
summary judgment on this basis. We note that Tela has ignored
this basis for the trial court's ruling and has pointed
to no evidence creating a genuine issue of material fact,
instead focusing its argument on its attempt to terminate the
lease based on the alleged default. See Cowart v.
Widener, 287 Ga. 622, 623 (1) (a) (697 S.E.2d 779)
(2010) (nonmoving party cannot rest on its pleadings, but
must point to specific evidence giving rise to a triable
issue). As this court has held in affirming summary judgment
to a defendant-tenant under similar circumstances,
"[w]here the landlord accepts rent from the tenant after
the default but before the dispossessory proceeding, the
landlord then has no right to institute ...