Defendant, Romeo Trumpet appeals from the trial court's grant of a writ of possession and a judgment for unpaid rent.
By letter dated March 10, 1994, Brown demanded past due rent and possession of the premises. Trumpet answered the complaint alleging he did not owe rent to Brown due to an IRS levy against Brown's assets.
1. Trumpet asserts the notice of levy he received from the Internal Revenue Service was a defense to Brown's claim for past due rent. We disagree. 26 USCA 6332 (e) provides "[a]ny person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made who, upon demand by the Secretary, surrenders such property or rights to property (or discharges such obligation) to the Secretary . . . shall be discharged from any obligation or liability to the delinquent taxpayer. . . ." (Emphasis supplied.)
Trumpet cannot simply assert the receipt of the notice of levy as a defense to Brown's claim for rent. Before Trumpet could avail himself of that defense, and be discharged from his obligation to pay Brown rent, he had to pay the rent to the Internal Revenue Service. Since Trumpet did not pay rent pursuant to the levy, we find no error here.
2. However, we do agree with Trumpet that the trial court erred in ordering a writ of possession because Brown did not properly demand possession of the property. OCGA 44-7-50
provides that in cases where a tenant fails to pay rent when it becomes due, the owner may demand possession of the property. If, after demand, the tenant fails to deliver possession of the property, the owner may file an action to recover possession. " '(I)n every case, a timely demand for possession is a condition precedent to the institution of dispossessory proceedings under . . . (OCGA 44-7-50
).' [Cits.]" May v. Poole, 174 Ga. App. 224
, 227 (3) (329 SE2d 561
Melvin R. Brown, for appellee.