Posted by Teresa on March 18, 2009 under Eviction, Landlord Tenant Lawsuits | 
Courtesy of www.flickr.com/umjandoan
Eviction: the word itself sounds unpleasant, and it is—on both sides. Does any landlord begin the eviction process against a tenant unless it is absolutely necessary? It’s not likely that anyone actually enjoys the legalities, paperwork, court orders and stress that accompany this process.
The best way to prevent having to evict tenants is to do the work required up front to attract and retain the best tenants. A few examples are:
1. Keep your property in the best possible condition;
2. Keep communication open with your tenants;
3. Screen tenants prior to signing the rental agreement;
4. Put everything in writing.
Even when all seems to be going well, you could still experience a situation that cannot be tolerated; and eviction is the eventual result. Knowing what to do in this case can make it easier.
Eviction laws vary by state and even by locality; it is vital to follow them precisely. You may decide to consult an attorney or eviction service to assist you; if so, the web is a great resource to find these specialists.
There are basic rules to evict problem tenants, no matter where you live. First, a legal reason, such as violating the lease agreement, is required. Second, you must give the tenant notice. Each state has exacting procedures that define “proper notice.” Keep in mind that in some localities, you may not follow through on the eviction if you accept rent payments after giving notice. Third, you will have a legal proceeding before a judge. If the judge’s rule calls for eviction, there will be a notice of eviction from the court.
Now, the court may side with the tenant; if you decide to appeal the decision, be prepared for another lengthy and costly procedure. You will likely need legal representation for the appeals process. And, the tenants can appeal, as well—so a first-round victory doesn’t mean you’re completely off the hook.
Preparation is key: a solid rental agreement, along with evidence (such as photographs and communication logs) will be your best tools when facing the eviction process. It’s easier to stay organized from the beginning than to try to catch up when you’re facing a court date!
Next Post: Becoming a Landlord
Posted by Teresa on March 13, 2009 under Eviction, Landlord Tenant Lawsuits |
The law protects tenants from evictions, rent increases, and other penalties a landlord might impose out of retaliation. Most often, this occurs after a tenant files a complaint or other action against the landlord. If you decide to evict a tenant, raise the rent, or terminate a lease, you must be prepared to prove it is not in retaliation for the tenant’s actions.
What is considered retaliatory action? If your tenant files a complaint through proper channels about your lack of maintenance or a code violation, you may not raise their rent, break their lease, or evict them. You may not threaten eviction or reduce services, either.
If you do decide to evict a tenant for legitimate reasons, such as severe property damage, non-payment or continual late payment of rent, or illegal activity, you must prove that your reason is legal. The law assumes a tenant who has filed a complaint and subsequently is evicted is being treated illegally. You cannot punish a tenant for exercising their rights under the law.
The reality is that once a tenant files a legal complaint, it becomes more difficult to later evict them, even with just cause. The best practice is to prevent such complaints with regular inspection schedules, proper maintenance, and good communication. In addition, prescreening tenants and checking references will be good clues as to their rental habits and history—before you enter a legal agreement to lease your property.
Posted by Teresa on January 6, 2009 under Eviction |
When rental property becomes uninhabitable and the tenant no longer has full use and possession of a rental property, that tenant can claim Constructive Eviction to relieve the obligation to pay rent to the landlord. A tenant must take several steps to claim Constructive Eviction:
- The tenant must serve the landlord with a written notice of the construction eviction
- Tenant must also provide the landlord with a reasonable period of time to correct the situation.
- If the defects are not corrected within that reasonable period of time, the tenant then may be able to leave the property without being responsible for payment of rent otherwise due under the lease.
- In most cases, the tenant must physically move out of the property, and then sue for damages, etc.
Posted by Teresa on November 8, 2008 under Eviction, Landlord Tips |
While few of us want more paperwork in our lives, using a good move-in/move-out checklist for every tenant in every property can save lots of trouble in the long term.
If you’ve ever been a tenant, you’ve most likely participated in the checklist process. Most tenants are happy to take part, since it protects them as well as you from misunderstanding when they move out.
Additionally, if tenants know that there is a clear record of the property condition when they move in, they are often more careful to take care of the property during their stay.
The checklist should:
- be well-organized into rooms
- include list of all furniture (if included) and appliances
- be completed with both the landlord and tenant present
- be signed by both landlord and tenant
A copy of the checklist should be kept by both landlord and tenant.
Posted by Teresa on November 5, 2008 under Eviction |
There are several defenses a tenant can raise to stop from being evicted from your property. Knowing this information can help you take the right steps when you need to evict, or help you to know if you are likely to be able to evict the tenant!
The laws vary according to the state, but these are the common defenses in eviction in most areas:
- Probably the most common defense is that the landlord failed to give proper notice, either in the form of the documents, the method they were delivered, or the times given to the tenant. This defense doesn’t mean you can’t evict, but you’ll need to start the process over from the beginning.
- Accepting partial rent from a tenant may be a defense against eviction, at least for that rental period. If you want to accept partial rent, check your state’s laws.
- Failure to keep the rental property well maintained is another common defense against eviction. Again, check your state’s laws to determine how this is handled in your location.
- Other defenses against eviction are claims that you, as landlord, are retaliating against a tenant for acting as an activist regarding code violations or property conditions, for the property being uninhabitable, or for Fair Housing Act violations.
Be sure you know your state’s laws!
Posted by Teresa on October 31, 2008 under Eviction |
Even after an eviction is ordered by the court, the correct steps need to be followed according to law.
The landlord cannot simply remove the tenant’s possessions, or change the locks. The landlord needs to take the court order to the sheriff, who then posts a notice to the tenant (usually on their door). The notice will explain that the tenant must move, and will clearly state the time they have to do so.
If the tenant does not move within that time, then the sheriff is the one who needs to remove the belongings from the rental unit, not the landlord.
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Posted by Teresa on October 23, 2008 under Eviction |
If a situation with a tenant can’t be resolved without legal action, and after the proper notices are given and time periods according to state law have passed, a landlord may then file an eviction lawsuit with the court. This is a process that takes care and attention to detail, and is probably best handled by an attorney.
Filing Eviction Documents
- The landlord files the correct eviction papers with the court
- Proper documents are delivered (served) to the tenant according to the law
- In most areas, the tenant then has a chance to answer
Tenant’s Response
- The time allowed for the tenant to answer will be stated in the law, and varies according to the state and the reason for eviction.
- The tenant’s answer must be in the proper format according to the law, and they may choose to also hire an attorney to prepare those documents.
- They may raise a defense that they should not be evicted, and stating the reason.
Default Judgment
- If the tenant does not answer, the court will enter a default judgment for eviction (as long as the landlord can show that the court papers were properly served on the tenant).
- A tenant may request that default judgment be set aside, if they can prove a good reason why they did not answer within the time period allowed.
Court Hearing or Trial
- If the tenant raises a valid defense, the case will be set for a hearing or trial based on the facts.
- The landlord will need to produce all the evidence showing the reasons for the eviction.
- The court will then rule whether the tenant should be evicted.
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Posted by Teresa on October 17, 2008 under Eviction |
The length of time it takes to evict a tenant varies according to the state, and the reason for the eviction. Each state will specify the length of time a landlord is required to allow the tenant to correct the problem (pay back rent, remove the pet from the property, etc.).
It is also important that all the procedures that are outlined in the law are followed very carefully. Small mistakes in paperwork can often mean lengthy and costly delays, including having the case thrown out and needing to begin again. It’s wise to consider the use of an attorney in the eviction process.
The entire process can take as little as 20 days, or as long as several months.
Posted by Teresa on October 14, 2008 under Eviction |
Before actually beginning the lawsuit to evict a tenant, a landlord must legally terminate the tenancy. This means giving a written eviction notice to the tenant. Each state has its own requirements for the specific forms to be used and the procedures for each step in the process.
What Happens After Notice to Terminate Tenancy is Given?
- Once the tenant is notified, they usually have an opportunity to correct the problem (pay the rent that is due, remove the pet from the property, etc.) within a limited time.
- If the problem is not corrected, then the landlord can file the lawsuit to evict.
Types of Eviction Notices
Even though names of documents and procedures vary from state to state, there are three basic types of eviction notices.
- A nonpayment of rent notice gives the tenant notice that they must pay the rent within a certain number of days (usually 3 to 5 days) or move. If the tenant pays, they cannot be evicted.
- Notices to fix a violation give the tenant a set time (often set by state law) to correct a problem, such as having a pet when the lease has a no-pets clause. As with payment of back rent, if the problem is corrected, the tenant cannot be evicted.
- The third type is used generally when there are continuing problems, repeated late payments, or serious damage to the property. These are unconditional notices which require the tenant to move, with no chance to pay or correct the problem.
- In most states, landlords can also give an eviction notice without reason, usually giving 30 to 60 days notice. If there is a lease in place, the tenant cannot be evicted during the term of the lease.
Know the Eviction Rules
Be sure, if you need to start this process, that you find and follow the rules in your state, and keep copies of all paperwork!
Posted by Teresa on October 4, 2008 under Eviction |
No matter how much rent is owed or how many rules a tenant breaks, it’s important to follow the law in your state when it comes to evictions.
It can be very tempting to try to evict a tenant by
- changing locks
- removing their possessions
- turning off heat or power
In the big picture, that is a very dangerous and often costly mistake. A landlord who tries those methods can be liable for damages, penalties, and even a lawsuit from the tenant that will end up costing more than the eviction process itself.
Find out the law in your state, and follow it, to protect yourself and your rights!
