dissenting.
I respectfully dissent from the majority’s conclusion in this case that summary judgment was correctly granted in favor of the tenant solely because the landlord did not actually terminate the lease prior to making demand for possession. I completely agree with the majority’s recitation of the established principle that a demand for possession is a condition precedent to the right of the landlord to commence proceedings against the tenant holding over under Title 61 of the Code. Here there is no dispute over the fact that the landlord made proper demand for possession prior to instituting the dispossessory proceedings. The only basis for attacking the validity of the dispossessory proceedings here is that the lease itself was not terminated.
It is my opinion that unless possession is sought by the landlord on the basis o/the termination of the lease agreement, termination is not necessarily a condition precedent to the institution of dispossessory proceedings. Especially is this true in a case such as this where the basis of the landlord’s action seeking possession of its premises is the nonpayment of rent. “When the [dispossessory proceeding] is based upon the failure to pay rent due, there is no statute that requires any notice from the landlord other than the demand for the possession of the property, as prescribed by [61-301].” Bussel v. Swift, 50 Ga. App. 148, 149 (177 SE 277) (1934). The majority cites Housing Authority of Atlanta v. Berryhill, 146 Ga. App. 374 (246 SE2d 406) (1978), and Wig Fashions v. A-T-O Properties, Inc., 145 Ga. App. 325 (243 SE2d 526) (1978) as authority for holding that prior termination of the lease itself is indispensable to the viable maintenance of a dispossessory proceeding. However, these cases stand only for the proposition that if the right of *690possession is based upon the termination of the tenancy, the termination must precede the demand for possession. As stated, the basis of the reacquisition of possession here is nonpayment of rent and not the termination of the lease.
If actual termination of the lease agreement were necessary before a landlord in a long term lease could remove from his property a tenant who would not — or, at that time, could not — pay his rent, the landlord would have to waive his otherwise existing right to sue the tenant for the rent due during the balance of the term less any rents obtained by leasing the premises to another party after the vacation of the defaulting tenant. “It is clear, however, from Georgia Code Annotated, section 61-301 that any tenant who is holding over beyond his term, and who has not become a tenant at will, or any tenant who fails to pay rent when due, would not have to be given a notice of termination of tenancy.” (Emphasis supplied.) 19 EGL 309, Landlord and Tenant, § 86. The import of Code Ann. § 61-301 is that a demand for possession is always necessary — even when the tenancy has been terminated. See Beveridge v. Simmerville, 26 Ga. App. 373 (4) (106 SE 212) (1920); Ginn v. Johnson, 74 Ga. App. 35, 38 (38 SE2d 753) (1946); Jett v. Wolfe, 75 Ga. App. 155 (42 SE2d 505) (1947). However, a termination of the tenancy is not required in order for the landlord to recover possession because of the tenant’s failure to pay rent when due. See Harkins v. Boyd, 136 Ga. App. 365 (221 SE2d 207) (1975); Craig v. Day, 92 Ga. App. 339 (88 SE2d 451) (1955); Lanier v. Kelly, 6 Ga. App. 738, 741 (65 SE 692) (1909).
For the above reasons, I believe that the trial court erred in granting summary judgment in favor of the defendant-tenant and I would reverse that judgment. Therefore, I respectfully dissent.
I am authorized to state that Judge Smith and Judge Sognier join in this dissent.