Landlord_Tenant (Georgia)

Written & Verbal Agreements
Written Agreements
Verbal Agreements

Written Agreements
A residential lease is often a written agreement that defines the rights and duties of both the landlord and the tenant. Like any other contract, the parties in a lease both promise to do things for one another. The lease obligates the landlord just like it does the tenant, and the landlord can be taken to court if the terms are not abided by. So read your lease carefully. And always ask yourself: "Which rules and regulations bind me and which rules and regulations bind my landlord.

Leases and Verbal Rental Agreements (GA)
Learn the advantages & disadvantages of a written lease, what a written lease should contain, and your rights when there is no written lease.

Lease Termination and Renewal (GA)
FAQ's on penalties for early termination, required notice to leave, the landlord's right to enter, roommates, pets, renewals and your rights when the landlord accepts rent payments after the end of your written lease.

Breaking My Lease-Can The Landlord Make Me Pay For The Whole Lease Term? (Consumer-SOS)
Only applies if your lease is silent on the matter. Otherwise the lease itself will control.

How Landlord's Acceptance Of Premises May Prevent Right To Collect Future Rent Due To Tenant Breach (Georgia)
Legal significance of changing locks after abandonment, the status of holdover tenants after a written lease has expired, the right of the landlord to personal property and fixtures the tenant leaves behind, landlord liability due to illegal evictions, forceable entry, etc.

GA Leases That Automatically Renew-Are They Enforceable? (Commercial Leases)
Perhaps not!

Georgia Landlord Tenant Law From A To Z With Georgia Case Law
p.15 has case law regarding verbal and written agreements.

Where To Get Legal Or Government Assistance (Georgia)

Georgia L andlord Tenant Help For Soldiers At Fort Benning
Georgia leases have a military clause. After you move into your rental, CHRRS will assist you if you have any kind of landlord/tenant problems. If you receive PCS orders or TDY orders in excess of 90 days, you can break your lease with a copy of your PCS/TDY orders and a written 30-day notice.

http://www.mrlandlord.com/html/frametop_frametop.html (In 48 States, Not HI or MI)
This site has select laws from each state on security deposits, evictions and landlord laws, but it's not consumer friendly. Their "landlord Laws sections may have stuff on notice to end tenancy and other stuff tenants should know.

Verbal Agreements

You have a verbal rental agreement whenever you rent without a written lease. In most cases, verbal and written agreements are equally valid and equally binding. In other words, both you or the landlord can sue when the other person has breached their obligations.

But there are major differences too. Many states have special laws that apply exclusively to verbal contracts. These laws are not negotiable, which means they bind both you and your landlord, whether or not the terms were agreed upon.

In Georgia for example, the landlord must give the tenant a full 60 days notice before ending the rental agreement. This law is not up for discussion or debate. The landlord must give the tenant the full 60 days even when both of them had previously agreed to a mere 30 days.

Another major difference involves the duration of verbal agreements. Most states will hold that a verbal contract to rent for more than a year is null and void. When a contact is null and void, either party can walk away without penalty.

Georgia Landlord Tenant Law From A To Z With Georgia Case Law
p.15 has case law regarding verbal and written agreements.

Where To Get Legal Or Government Assistance (Georgia)

Landlord Tenant Help For Soldiers At Fort Benning
Georgia leases have a military clause. After you move into your rental, CHRRS will assist you if you have any kind of landlord/tenant problems. If you receive PCS orders or TDY orders in excess of 90 days, you can break your lease with a copy of your PCS/TDY orders and a written 30-day notice.

http://www.mrlandlord.com/html/frametop_frametop.html (In 48 States, Not HI or MI)
This site has select laws from each state on security deposits, evictions and landlord laws, but it's not consumer friendly. Their "landlord Laws sections may have stuff on notice to end tenancy and other stuff tenants should know.

Roommates

Evicting A Houseguest (Consumer-SOS)
What to do when your guest won't leave.

Collecting Your Deposit When You Leave But Your Roommate Remains (GA)

Help Resources In Atlanta
How to deal with housing code problems, discrimination, roommates, late rent and lack of money, finding an apartment, transportation, health & safety and more.

Roommates & You
Very well organized discussion of issues in selecting and living with a roommate from paying the rent, to quiet hours, to where you'll leave phone messages.

The Talk All Roommates Must Have
Learn the essential things you need to ask someone before you decide to room with them. Very Good!!!!

Reverse Lookups-Finding The Name & Address When You Only Have The Phone #
Strange # on your phone bill? Find out who it belongs to.

Choosing A Roommate
Placing ads, roommate services, living with friends, and knowing what you want are all covered in this article.

Are Roommate Matching Services Safe?
Article discussing what to look for in a roommate matching service and how to protect your privacy.

Making Rental Payments With Roommates
Tips to protect your tenant/credit record when sharing lease responsibilities with roommates.

Form Letters And Practical Advice On Dealing With Unruly Roommates

Index Of Roommate Related Articles

Housemate Match (Metro Atlanta)
Home sharing program that matches mature adult homeowners who have extra room in their homes with adults (tenants) seeking a roommate in a beautiful and safe place to live in the Atlanta area. Service is free. Rents will vary.

Home But Not Alone (Metro Atlanta)
Housing program that provides compatible homeowners and tenants, one or both of whom are HIV+, with shared living arrangements. Qualified homeowners with an extra room are matched with tenants seeking safe, affordable housing.

In Home Caregiving (Metro Atlanta)
In-Home Caregiving provides homeowners with live-in, non-medical services from qualified caregivers for reduced rent. Thus family caregivers are given respite, because the homeowners can live independently in their own homes. In return, the “tenant” caregiver lives there for a reduced rent.

Housing options offered in: Fulton County, City of Atlanta, DeKalb County, Cobb County, and Gwinnett County.

Where To Go For More Help

Evicting An Unwanted Houseguest (See GA Case Law on Who's A House Guest & Not A Tenant)
So, you let a friend who was out of work stay in your apartment. Now after weeks or months she won't leave, though you've told her she must. Frantic, you ask a cop friend of yours what to do and he tells you to have her evicted. BUT Watchout!!!

Be carefull about evicting a guest. A GUEST WHO HAS BEEN TOLD TO LEAVE MAY HAVE NO LEGAL STATUS WHATSOEVER. ARGUABLY, THIS PERSON IS A TRESPASSER. Call the police and have the person and their things removed without ceremony.

Eviction is a legal process reserved only for those who pay rent, share household expenses or have some legal relationship to either you or the landlord. Serving a trespasser with eviction papers may actually do more harm than good. The reason is that such may actually convert that person into a tenant!!!! This means you may be responsible to follow the entire eviction process just as if the landlord were evicting you. It also means your "tenant" would have new legal rights such as the right to challenge the eviction in court and the right to remain in your residence for weeks until the the entire process was over. And during this time, you as "landlord" would be legally forbidden to change the locks, remove the tenants things, etc.

Steps To Take To Get Rid Of an Unwanted Guest

Do not allow the guest to forward mail to your address. Have them forward it to a PO box or to a friend of yours who lives nearby. Under landlord tenant law, it's harder to remove a guest if it appears that you agreed to let the person live with you indefinitely.

If Possible, Do not give them the house key. Good for legal reasons and reminds them they are guests.

Do not accept rent money from the guest. The police are less likely to remove him when it appears he's a tenant. Also, when you accept rent from a guest, such may convert him into your tenant and the landlord's subtenant. Down the road this can cause legal complications for both you and your landlord.

Never for any reason cash their checks in your bank account. It can be claimed later you kept the money for rent. Instead direct them to a check cashing place. If you feel bad about it, reimburse them for the check cashing fee.

Tell your guest a specific date when you want him to leave the premises. If your gut tells you there may be a problem, follow up in writing and keep a copy for your records. Make sure your letter is firm and mentions the exact date of departure. For example, telling her "I'd like you to leave" is not nearly as good as "You need to leave by this date..." Note: your letter should restate that you allowed the person to stay as a favor. Also, don't give a deadline that is exactly 30 or 60 days away. These time limits are reserved for tenants. Give them more or less as you see fit.

Restate your deadline a day or two beforehand. Those afraid to confront can start with "So, after tomorrow, where are you going from here....." or "Tomorrow, do you need me to help you pack your things, call relatives and friends, etc..."

On the day of the deadline, bring a trusted friend with you. This helps the unwanted guest know you're serious. Your friend should be someone who will keep their cool if you have to call the police.

So, they still won't leave? Call the police and tell them the following "I have an unwanted houseguest who refused to leave when ordered to. She never paid rent, never never split household expenses, never was on the lease, and never got permission from the landlord to stay. She also never had the house key. She was never anything more than a houseguest and I allowed her to stay merely as a personal favor to her. She is a trespasser and I need her removed right now." When the police arrive tell them again what you said on the phone. If necessary, show them a copy of the letter you wrote. If they balk and tell you to file eviction papers, show them the case law below.

So the Police Didn't Remove her? Well then, have your landlord do so. Usually a subtenant must have the landlord's permission to remain on the premises. So, while it may be debatable whether or not you can remove him, the landlord can do so on a whim and at any time. See Subleasing.

If your landlord won't remove her, bring the cases below to the magistrate judge so they can issue a trespassing warrant. Your other option is to get a writ of mandamus which is a legal order to compel the police or sheriff to do their job. (In this case, doing their job means removing the trespasser). If that doesn't work.

Hire an attorney or fill out eviction papers and take the risk.

Case Law On What Is a House Guest

Modern case law states that someone can be a tenant even if they don't pay rent. However, if the "tenant" is really just a houseguest, you may be able to remove them at a moment's notice and thus avoid the formal eviction process. But the law is not clear on the matter.

The case most on point is Williams v. State, 261 Ga. App. 511, 513, 583 SE2d 172 (2003). Williams, involved someone who lived in a shed on his step dad's property. Williams was never given a key to the shed, never paid rent and was allowed to stay only if he had a job. When he lost his job, his stepfather had him removed without resorting to the eviction process. This case went to criminal court when Williams made violent threats to both his step dad and the arresting officer.

While the court ultimately overturned William's conviction, it acknowledged that

"it could be argued that when rent is not paid, the relationship between the parties is more in the nature of that of a host and guest, and the owner of the property is not bound by the statutory duties of a landlord."

Other Cases That Determine if Someone is a Houseguest and Nothing more than a Houseguest.
The following cases involve houseguests who sued their hosts after they were hurt on the host's property. Although these are not landlord tenant cases, they lay out specifically whether someone is a guest or more than a guest. In both cases, the individuals stayed overnight or longer. However, they were found to be nothing more than social guests.

The GA Courts Deemed Them To Be Guests and Not Tenants Because They:

Never paid rent;

Never shared household expenses; and

Were being allowed to stay merely as a personal favor.

Robinson v. Turner 297 S.E.2d 522, 164 Ga.App 515 (1982)
Person who stayed at someone's house for a time period while her mother recovered from surgery, was a mere social guest when he paid no rent, shared no household expenses, and was being allowed to stay there only as a favor.

Riley v. Brasunas 438 S.E.2d 113, 210 Ga.App. 865 (1993).
The fact that someone from out of town was invited to stay overnight or longer in a person's private residence does not make them a tenant or invitee. A social guest in a person's private home is a bare licensee, even though he was expressly invited to be there.

A landlord's tenant, for example, would be an invitee (see Gaydos v. Grupe Real Estate Investors, 211 Ga. App. 811, 812 (440 SE2d 545) (1994)), whereas a social guest in one's home is a mere licensee (Knisely v. Gasser, 198 Ga. App. 795, 797-798 (2) (403 SE2d 85) (1991)).

How To Talk to The Judge

Remember: You're a lay person and the judge may not even know this law exists. Be humble. Don't come off as a "know it all." Tell the judge "your honor, I am definitely not a lawyer and have no legal training. But these cases may shed some light on my situation. I am hoping that you will look at them. In essence they seem to say that he's more of a houseguest than a tenant and that the formal eviction process may not be appropriate here.

Back To Landlord/Tenant

Moving Out

How Much Notice Must The Landlord Give Me To Move Out When I had A Written or Verbal Lease For No Specific Time Period? (Consumer-SOS)

Lease Termination and Renewal (GA)
FAQ's on penalties for early termination, required notice to leave, the landlord's right to enter, roommates, pets, renewals and your rights when the landlord accepts rent payments after the end of your written lease.

Leases That Automatically Renew-Are They Enforceable?
Perhaps not in Georgia!

Breaking My Lease-Can The Landlord Make Me Pay For The Whole Lease Term? (Consumer-SOS)
Only applies if your lease is silent on the matter. Otherwise the lease itself will control.

Security Deposits (Consumer-SOS)

Uninhabitable Premises/Constructive Eviction (Consumer-SOS)

Landlord's Rights To Tenant's Property Left Behind
Scroll down for the right of the landlord to personal property and fixtures the tenant leaves behind.

Georgia Landlord Tenant Law From A To Z With Georgia Case Law
The left hand index has all you want to know about security deposits, evictions, repairs, counter claims, summons, service ands more.

Landlord-Tenant Statutes (In 48 States, Not HI or MI)
This site has select laws from each state on security deposits, evictions and landlord laws, but it's not consumer friendly. Their "landlord Laws sections may have stuff on notice to end tenancy and other stuff tenants should know.

Where To Go For More Help (Consumer-SOS)

How Much Notice Must The Landlord Give Me When I had A Written or Verbal Lease For No Specific Time Period.

Answer: The landlord must give you 60 days notice.

What about if I signed a written lease where I would pay rent week to week and the landlord reserved the right to give me only 7 days notice. Can he end the lease in just 7 days?

Answer: No. If the lease has no date for when it will end, the landlord must give you a full 60 days notice, even if the lease says otherwise.

Statutes And Case Law

Where no time is specified for the termination of a tenancy, the law construes it to be a tenancy at will. See OCGA 44-7-06 see also

To terminate a tenancy at will, the landlord is required to give the tenant 60 days notice. See GU v. LIU, 262 Ga. App. 443, 585 S.E.2d 740 (2003) (agreement to rent real property that did not specify date for termination was tenancy at will under Georgia law).

Fact that bedroom and bath were rented furnished in a building containing other
rooms and the term was on a week-to-week basis does not affirmatively show that landlord-tenant relationship alleged by plaintiff did not exist, so as to change the duty owed by the defendant to the plaintiff from that of landlord to tenant to innkeeper and guest. Garner v. La Marr, 88 Ga. App. 364, 76 S.E.2d 721 (1953).

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Breaking My Lease-Can The Landlord Make Me Pay For The Whole Lease Term?

Landlord Has 3 Options, One Of Which is to Hold The Tenant Liable To The End Of The Lease Term.
However, The Tenant may not have to pay The Entire Amount if:

The landlord retakes the premises, or

Ends the lease, or

Accepts the tenant's surrender either by using the premises for storage, or

Is using it in a way inconsistent with the tenant's right of occupation.

Landlord's Options When Tenant Wrongfully Breaks Lease

See Case Law Below:

Landlord's possession of premises vacated by tenant does not
constitute acceptance of surrender or abandonment of premises by 
tenant. Landlord has option of (1) terminating lease, (2) obtaining another
tenant while holding original tenant liable for any deficiency, or (3)
permitting premises to remain vacant while collecting rent from 
original tenant. Lawson v. Crawford, 220 Ga. App. 447 (1996). Thus, landlord not
required to mitigate damages, i.e. rent losses, after tenant abandons
premises. Shaheen & Co. v. Dickson, 207 Ga. App. 328 (1993).

Generally, see Pindar, Ga. Real Estate Law and Procedure, § 11-37.
Mere failure to pay rent (after vacating premises) would not 
necessarily constitute an abandonment and surrender of leasehold interest. Smiway,
Inc. v. DOT, 178 Ga. App. 414, 418 (1986). See also Dawkins, § 5-1;
Noble v. Bethlehem Housing Authority, 617 F. Supp. 248 (E.D. Penn,
1985).

Situations Where The Tenant May Not Have To Pay For The Full Lease Term But Only For Shortly After The Breach
See Case Law Below:

Surrender must be accompanied by landlord's agreement on to retake
possession of premises or such circumstances as compel conclusion that
landlord consented to retake possession. Vaswani v. Wohletz, 196 Ga.
App. 676 (1990).

If tenant surrenders possession, and landlord takes possession or
exercises control over premises inconsistent with tenant's right of
occupation, lease canceled and tenant discharged from subsequent rent
liability. Vineyard-Village Georgia v. Crum, 136 Ga. App. 335 (1975).
Where landlord uses premises for storage while seeking replacement
tenant, original tenant not liable for rent during such usage. Lawson 
v. Crawford, above.

Georgia Landlord Tenant Law From A To Z With Georgia Case Law
The left hand index has all you want to know about security deposits, evictions, repairs, counter claims, summons, service ands more.

Back To Moving Out

Landlord's Right Of Entry

The Landlord's Right To Enter Your Residence (GA)
FAQ's-The Landlord's right to enter is the fifth question from the bottom.

When The Landlord Can Enter Your Apartment (General)

Notice Requirements To Enter Property (Chart For All 50 States)

Where To Go For More Help (Consumer-SOS)

Subleasing

Subleasing In Georgia (Consumer-SOS)

Where To Go For More Help (Consumer-SOS)

Nuisances, Noise & Neighbors

Georgia Housing Code Guide
Complaints and inspections relating to rental property, vacant lots health hazards and nuisances. Lists housing code agencies in Metro Atlanta.

Contacting Your Neighbors (Consumer-SOS)
Use Internet phone books and reverse lookups to find out who your neighbors are and contact them. Good to organize a neighborhood watch, or simply have them turn down the noise.

Uninhabitable Premises/Constructive Eviction

Help Resources In Atlanta
Atlanta help for housing code problems, health & safety, discrimination, roommates, late rent and lack of money, finding an apartment, transportation, and more.

Noise & Neighbors (General, mostly for homes)

Dog Bite Law For Owners & Victims (GA)

Dog Bite Law In General

Find Your City's Municipal Codes
Learn how your city code treats, garbage, nuisance and safety hazards. If you can't find your city, follow their links to other code sites that can help you.

Where To Go For More Help

Commercial Leases That Automatically Renew-Are They enforceable If We Forgot Not To Renew? (Landlords Scroll Down For Defenses)
I'm a commercial tenant with a lease that automatically renews every year unless I give 60 days advance notice. I was supposed to give notice of ending the lease on January 1st, but unfortunately I forgot, and told my landlord on January 15th that I wouldn't renew. Now he says I'm stuck with the lease for another year. Am I really locked into this because I missed their deadline by two weeks?

The Short Answer
Probably not. Under Georgia law, all auto renewal contracts require the mutual consent of both parties at or before the time of renewal. While no Georgia cases refer to auto renewal terms in landlord/tenant leases, a lease is just another type of contract. See Nowcom Corporation v. Equifax Credit Information Services 2009 WL 3450255 (Cal.App. 2 Dist. applying Georgia law). So based on Nowcom and Georgia Case law, you can't be held to pay for the entire lease term that remains, for you never agreed to the automatic renewal. With that in mind, you may be able to simply pay a month or two extra rent as "reasonable notice" and part ways.

The Long Answer
Georgia law requires that both parties to a contract agree to the automatic renewal of the contract, at or before the renewal term begins. So without a mutual agreement, the non renewing party can't be forced to pay damages based on the whole renewal term. Williams v. AFLAC, Inc. (1993) 209 Ga.App. 841, 844 [434 S.E.2d 725, 729. Instead the agreement is deemed a contract at will, where only reasonable notice is required. See Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1280 (11th Cir.2003) Citing Coffee v. General Motors Acceptance, 5 F.Supp.2d 1365 (S.D.Ga.1998) (to hold that contracts of indefinite duration are generally terminable at will, though contracts that specify default conditions are not.)

In the landlord tenant setting, an at will contract is called a "tenancy at will". In a tenancy at will, the tenant must give 30 days notice before ending the agreement. See OCGA 44-7-6; 44-7-7 So if the tenant fails to give 30 days notice, they should pay no more than 30 day's extra rent.

Supporting GA Case Law
Georgia courts have long held against one sided automatic renewals. For example: the courts have held that an employment contract that automatically renewed at the end of a five year period was not enforceable without mutual consent before the date of renewal. Nikas v. Hindley, 99 Ga.App. 194, 108 S.E.2d 98 (1959); Likewise, in a self renewing attorney retainer agreement, the plaintiff could not recover damages from the renewal provision because the parties did not mutually assent to the renewal on or before the the renewal date. Williams v. AFLAC, Inc. (1993) 209 Ga.App. 841, 844 [434 S.E.2d 725, 729] ["Applying the fundamental rules of construction to the terms of the automatic renewal provision contained within the retainer agreement, [the plaintiff] cannot recover damages based upon the renewal period because the parties did not mutually assent to the renewal of the retainer agreement at or before the date of the renewal"]; Dominy v. National Emergency Services, 215 Ga.App. 537, 538, 451 S.E.2d 472, 474 (1994) (partially overruled on other grounds in AGA, LLC v. Rubin, 243 Ga.App. 772, 774 (2000).

However, the court may rule against you if you've acted in bad faith. For example: if six months past the renewal deadline you claim you never consented to the renewal or never signed the contract, be ready to show that your landlord knew of your dissent much earlier. If you just kept quiet about it, the court may find that by your actions, you really intended to renew.

A California Case That Is Actually A Good Authority For Georgia Law
Ironically, it's a California case that affirms that all contract renewals require mutual consent. See Nowcom Corporation v. Equifax Credit Information Services 2009 WL 3450255 (Cal.App. 2 Dist.). Normally, a Georgia court relies on its own precedent and not that of a sister state. But the Nowcom case is different because in this case, the parties contractually agreed that Georgia law would apply. So the case was decided under Georgia law.

In the Nowcom case, the plaintiff Nowcom paid Equifax for the right to resell Equifax consumer credit reports directly to auto dealers. In negotiations with Nowcom, Equifax was willing to sign an agreement that in pertinent part, read as follows:

This agreement.. will continue for an initial term of one (1) year and shall automatically renew for for successive one (1) year periods unless terminated by either party in writing at least ninety (90) days in advance of the then current term.

But the lease the parties actually signed was far more restrictive. It did away with the 90 days notice above which allowed the contract to end for any reason (so long as the proper notice was given). Instead, the contract would auto renew year after year indefinitely. The only way out of of it would be if either party went bankrupt, insolvent or failed to cure a material breach.

So four years went by and the parties allowed the contract to renew for four consecutive one year terms. But in the fifth year, Equifax tried unsuccessfully to negotiate different pricing terms. After months of such negotiations, and just three weeks before the renewal period, Equifax told Nowcom that it was terminating the agreement. Nowcom sued and the court held in favor of Equifax because Equifax never agreed for it to renew.

Landlords!!!!! Here's How You Can Distinguish Your Case From Nowcom and The GA Cases Cited Therein:
Even minor differences in your case can result in the court applying different case law. So if you're a landlord, here are things to note to persuade the court for a ruling in your favor.

Nowcom and cited cases do not involve a landlord tenant agreement and are therefore not applicable. Those cases involve the fiduciary relationship between a client and and attorney which gives the client a special right to cancel. Or they deal with employment agreements which have traditionally been treated differently than landlord tenant agreements.
Nowcom involved an agreement with an initial term (one year) and had a provision for auto renewals (but our situation is different). If your situation involves a contract with no time limit and the agreement can only end if a specific default event occurs, argue that your facts are more like those in Coffee v. General Motors Acceptance Corp. 5 F.Supp.2d 1365 ((S.D.Ga. 1998). In Coffee, the Court held that while contracts of indefinite duration are generally terminable at will, contracts that specify default conditions are not. Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1280 (11th Cir.2003).
The Nowcom agreement was unfairly restrictive and this is what the Court really took issue with. The Court frowned on the fact that the tenant no escape clause and was locked into a contract that renewed annually year after year unless some very rare conditions occurred. Argue that "in our case the tenant could end it for any reason if they just gave us the 30/60/90 day notice, which they neglected to do."
In Nowcom., the tenant attempted to negotiate with the landlord in good faith. Further, these negotiations occurred months BEFORE the renewal period began. "But our tenant is acting in BAD FAITH. They knew the lease was going to renew and only told us of their desire not to renew months AFTER the renewal period had already begun."
You can also argue "Although our agreement auto renews every year/two years,etc, the default provisions which would end the agreement are far more clear and specific than the generic default terms found in the Nowcom case. In fact, they are much closer to the specific provisions enumerated in the Coffee Case. "See Nowcom at p.6 (Court cites Coffee and how that case had more numerous and specific provisions that were less generic. ) See also Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1284 (11th Cir.2003) citing Coffee to hold that a contract of indefinite duration is not terminable at will if the contract contains express performance or default conditions.

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