Evicting a Tenant - Considerations for Landlords
By Aaron Larson
- Nonpayment of Rent
- Violation of the Lease
- Health and Safety Issues
- Counter-Claims by Tenants
Landlords sometimes find themselves in the difficult position of having a tenant who is not paying rent, who is causing problems for other tenants, who is damaging the rental unit, or whose conduct otherwise makes it unwise to continue the landlord-tenant relationship. While state and local laws governing eviction can vary significantly, the following suggestions will help most landlords when they find themselves in this unpleasant position.
Landlords who have any significant number of housing units will benefit from forming a relationship with a lawyer, who can advise them on eviction issues and handle any legal actions for them. Often, when such a relationship is established in advance, the lawyer will agree to perform certain legal tasks on a flat fee basis. Hiring lawyers on a case-by-case basis may result in significantly higher legal fees for landlord-tenant issues.
Please note that landlord-tenant law can vary significantly between jurisdictions. Landlords who manage government-subsidized housing may also be restricted by additional state or federal regulation.
In most jurisdictions, there is an expedited process for evicting a tenant for nonpayment of rent. While it can still sometimes be frustratingly slow for a landlord who needs the rental income, the time it takes to get an eviction order through a summary proceeding for nonpayment of rent is still usually less than for any other time of eviction proceeding.
The process typically involves serving the tenant with a formal notice that the rent is overdue, and that they face possible eviction. There are almost always pre-printed forms which a landlord can use to issue notices for nonpayment of rent, which fulfill all of the legal requirements for proper notice. Landlords who fashion their own forms risk having their notices deemed legally inadequate. After a legally defined period of time, usually about a week, if the rent arrearage has not been paid the landlord can commence eviction proceedings on the basis of the nonpayment.
Landlords sometimes run into trouble by accepting a partial payment during this eviction process. In most jurisdictions, the acceptance of any payment of rent (no matter how small) will result in the dismissal of an action for nonpayment.
This type of action may result in an order for eviction, or more typically for an order that the landlord will be able to evict the tenant if the rent is not paid by a specific deadline (e.g., ten days after the court enters the judgment). Please note that this type of order may not qualify as a "money judgment" for collection purposes - if the landlord believes it will be necessary to refer the rent delinquency to a collection agency, the landlord should check local procedures to make sure that it won't be necessary to return to court to transform the court's order into a money judgment.
Where a tenant is not complying with the terms of a lease, under most circumstances it makes sense for the landlord to provide a written warning of the violation, referencing the lease provision that the tenant is violating, and specifying a fixed amount of time for the tenant to remedy the problem, and inviting a written response. This avoids the potential problem that a tenant can claim that they did not know they were in violation of the lease, that they didn't have notice of a violation, that they didn't understand the lease, or that the problem was resolved as soon as they were served with a legal notice threatening eviction. A judge may be sympathetic to the argument that the tenant immediately complied with the lease once the nature of the violation was known, but it becomes harder for tenants to make such an argument if they ignored a prior notice and deadline.
Further, providing the tenant with a written notice of a violation is often the cheapest way to resolve a problem. While there will occasionally be a problem tenant, whose pattern of conduct is such that the landlord will want to proceed with an eviction even if they comply with the most recent notice, having a record of prior written warnings should help convince a court that eviction is the proper remedy. Also, some tenants lie convincingly - it will help, for example, to document that a tenant was warned about owning a dog, if they otherwise intend to pretend to a court that they were merely dogsitting for a couple of days or that the dog belonged to a friend who was visiting. Recall that judges are people, and that even the worst tenant can present a sympathetic face to a court or, when available, to a jury.
If the lease requires specific notice, or requires that the landlord give the tenant a hearing before commencing court action, the landlord should follow those provisions. It is extremely difficult to convince a court that a tenant should be held to the terms of the lease, where the landlord also is not following the lease.
Sometimes, a tenant's conduct will pose a health or safety problem for other tenants, or for the property in general. In many jurisdictions, there will be a special type of action available to evict tenants whose actions create a health hazard or damage the premises. Typically, this notice will give the tenant a fixed period of time (e.g., seven days) to remedy or repair the problem, or move out. If the tenant does not take timely corrective action, the landlord can then commence eviction proceedings.
Where a landlord doesn't want to retain the tenant even if the problem is remedied, it may be appropriate to serve a notice of eviction on the health or safety issue, while also serving a general notice of termination of the tenancy. If the problem isn't repaired, the landlord can proceed under the shorter notice provision associated with a health and safety eviction. If the problem is repaird, the landlord can still proceed with a standard termination of the tenancy.
When a tenant files for bankruptcy, the "automatic stay" will prevent the continuation of eviction proceedings until the bankrupcy is resolved, or the bankruptcy court otherwise permits eviction proceedings to continue by lifting the stay. This may necessitate bringing a motion before the bankruptcy court, asking that the stay be lifted.
Please note that while a bankruptcy action may result in the full or partial discharge of a rent arrearage, the tenant is obligated to pay any new rent obligations which arise from continued tenancy after the bankuptcy is filed. While it is still necessary to have the automatic stay lifted before proceeding with an eviction, bankruptcy courts are typically sympathetic to landlords in this position.
Some tenants will bring a counter-claim against a landlord when threatened with eviction, claiming lease violations or inadequate maintenance of the property by the landlord, and asking that the eviction proceedings be stopped or that they receive a substantial rent abatement for any arrearage owed. Tenants may also allege violations of applicable consumer protection laws, including protections against "retaliatory eviction" where the tenant has recently reported the landlord to a government agency for alleged housing violations.
As with warnings about tenant misconduct, it is good practice for landlords to keep written records of any complaints received by tenants about the rental unit or common areas, and of the steps taken to resolve the problem. For example, if the tenant complains that a furnace didn't work, the landlord would record the date, time and nature of the complaint, the date and time that a repair service remedied the problem, and that the problem was in fact fixed. Good records can obviate a tenant's claim that they repeatedly complained about a problem with their unit and that the landlord did not respond.
Landlords sometimes make technical mistakes when a tenant moves out, and end up having to return a damage deposit that they would otherwise like to apply to damage caused by the tenant. For example, if the law prevents a landlord from deducting the cost of cleaning an apartment from a damage deposit, the tenant may have a cause of action against the landlord if the landlord mistakenly deducts the cost of a cleaning service from the damage deposit before returning the balance. The landlord may have legal alternatives, such as charging a nonrefundable cleaning fee at the time the lease is signed, so it makes sense for landlords to have a full understanding of the law, or having their standard leases reviewed by a lawyer, before including an improper or unenforceable provision that may eventually cause problems. Similarly, the law may require a landlord to provide a specific notice of any claimed damage to the rental unit, along with the estimated cost of repair, before any deduction can be made from a damage deposit. If this procedure is not followed, sometimes the entire damage deposit must be returned no matter how badly the tenant damaged the property. Also, if the landlord is required to escrow the damage deposit, there may be consequences for failing to do so. Knowing the law can help a landlord prevent an unnecessary counter-claim, as well as ensuring that the damage deposit can be used for its intended purpose.
If your action against a tenant is going to trial, make sure you have all of your documentation together before you go to court. You should make copies, so that you can provide a copy to the court for its file or as an exhibit for the jury, as well as being able to provide a copy to opposing counsel. You should identify any witnesses you will wish to call in advance of the trial, and subpoena them to appear. (Even if they promise to appear, a subpoena will allow them to get out of work if their employer won't otherwise release them, and will provide you with some level of protection if they get cold feet about testifying.)
It is generally advisable for a landlord to obtain representation by counsel for eviction proceedings. Corporate landlords may have difficulty representing themselves through an agent, due to restrictions on who can represent a corporation in court. Landowners who have not incorporated may find that the legal process is difficult, may not know how to examine witnesses or present evidence, may not understand what needs to be proved to win an eviction action, and may not know how to respond to a tenant's plea for sympathy - particularly when presented to a jury. In most areas, there are lawyers who handle evictions on a regular basis for larger landlords. If you don't know how to find an attorney, consider asking a major landlord in the area who they use.
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