This Is A Member-Only Page The vast majority of residential evictions are for nonpayment of rent, which are usually treated as a summary proceeding and do not require a trial of fact.
Termination of a month to month tenancy for any other reason should be done without addressing the cause, if possible, because any reason given can be argued and may require an expensive trial to determine the validity of claims. Government subsidized housing requires that all evictions must be for cause.
Because of the importance of this subject to both landlords and tenants, our CSEU (Corner Stone Electronic University) provides a very extensive e-course on evictions that is available at no charge to RHOL members. Review the e-course today. Then set aside some time to complete the material and take the eviction proficiency examination. The knowledge you gain will likely be worth thousands of dollars to you and dramatically reduce the stress associated with an eviction. Click Here.
There are four types of tenancy: Estate For Years, Periodic Tenancy, Tenancy at Will and Tenancy at Sufferance.
Evict only when all else fails. Types of eviction:
In that rare and unlikely event that a tenant does not pay their rent when it is due, and you have asked them nicely for payment for the very last time, landlords may still not take any action except that which is proscribed by the law of their state for collection and eviction and the strict rules of the Fair Debt Collection Act. For example, thou shalt not:
- Toss them out on their ear or threaten to break their bones.
- Ever threaten to use violence.
- Threaten to harm the tenant's reputation or property.
- Yell, scream or use obscene and abusive language.
- Make repeated harassing collection calls.
- Make false claims that a failure to pay will result in some kind of disaster, like jail, or seizure of the tenant's wages or property
The first law of landlording should be to know everything possible about a tenant before you give them the keys to your property. The second law, which should be posted clearly on every landlord's refrigerator door, is: never make a tenant mad at you while they are still in possession of your property.
We all know landlords who have broken all of the commandments listed above, and sometimes they have even gotten away with it. But their actions have contributed significantly to the multitude of onerous laws that law abiding landlords are now burdened with.
There are certainly street justice people in our society, as both landlords and tenants, who seem to have their own methods for settling disagreements. One old-time landlord in our town was known to stop up the toilet on purpose when the tenant was away, then refuse to fix it until the rent was paid. He would even plant marijuana in the apartment of a problem tenant, then call the police. Those selfish, short-sighted solutions have cost every other decent landlord thousands of dollars in government interference and regulation of the rental housing business. Return to list Constructive eviction occurs when a rental property becomes untenable, or a landlord substantially interferes with a tenant's ability to use the property for its intended purpose. Constructive eviction includes:
- Changing the locks.
- Removing an entry door.
- Turning off any utility under the landlord's control. (In many states that is worse than breaking a kneecap.)
- Using any means whatever to make the dwelling untenable.
- Interfering with the tenant's quiet enjoyment.
A tenant who has been constructively evicted can repossess the property, collect actual damages and even be awarded punitive damages. Fines can also be levied for each day that a tenant is deprived of possession or enjoyment. If a tenant's use is substantially impaired because of excessive noise, terrible odors, nearby property being used for drugs or other immoral purposes, constructive eviction may have occurred. Return to list Retaliatory eviction occurs when a landlord attempts to evict a tenant in response to some (legal) action taken by the tenant. A common instance of retaliatory eviction is after a tenant has made a complaint about the landlord, or the property, to a duly constituted authority. Another likely instance is after a tenant has called for or supported municipal rental inspections.
There are of course, countless cases where a landlord and tenant become emotionally and personally upset with each other which may not constitute a clear violation of either the lease or the law. In such instances it behooves a landlord to step back from the situation and consider the consequences if he takes any action that could be held to be a constructive or retaliatory eviction. The costs could be extreme. Return to list Legal Eviction. When you have tried every other reasonable alternative it occasionally becomes necessary to resort to the horrors of what is facetiously called our system of justice. The only legal way to remove a tenant from your property, no matter the reason, is with a court order and writ of restitution.
The eviction laws of every state differ in some respects. Your best source of information is usually the local rental housing association. Some states have landlord/tenant courts. Some others devote a certain day of the week to evictions in a civil or criminal court. Still others allow you to use Small Claims Court. All of them have advantages and unique problems. Small Claims is usually the cheapest and simplest but it is also the slowest. Each and every day a nonpaying tenant stays in your property costs big bucks and ten extra days while waiting for a court date would easily pay the costs of using traditional legal procedures.
Most eviction statutes are called summary proceedings or process, because they limit the proceedings to the single issue of possession. If additional questions are raised such as damages or back rent, and the tenant contests the facts or makes a counterclaim, the case will be moved to the civil court docket and the time necessary to resolve the issues could drag on for substantial periods. Most of us here confine an eviction for non-payment to possession and back rent. We seek money for damages in small claims court.
You may have to hire an attorney, it depends on how you hold title to the property. Property owners may represent themselves in court for an eviction. Note the distinction "represent themselves." In most states, a property manager may not represent the owner of a property unless they are licensed to practice law. Some states also require that a corporation be represented by an attorney because it is a legal entity, not an individual with constitutional rights.
If you are the property owner, you should be able to handle your own evictions most of the time. A demand for possession for non payment of rent is little more than a formality requiring that proper notice be given and that court approved forms are filled out properly and filed with the court. Most evictions for non-payment require:
Notice to pay rent or quit, also called a demand for possession for non-payment. The amount of time given the tenant to pay their rent or vacate the premises varies in each state. Usually from 3 to 14 days. (California requires 3 days, Florida 5, Michigan 7, Massachusetts 14.) Every state requires that legal notice be given in advance of any legal proceeding. The notice must contain the tenant's names and should list those of any other adults living in the dwelling. It is also a good idea to add a phrase like "all other occupants." The notice must additionally contain the address of the dwelling, the amount of rent due, the date it was due and the signature of the owner. Some states also require that signatures be witnessed or notarized.
The copy of the notice that is given to the tenant may also require language that advises tenants of their legal rights under state law.
Note: Landlords of public housing and rent-controlled units must seek approval of the local housing authority and rent control board, respectfully, before they can proceed with an eviction. In either situation tenants have a right to a hearing in front of the appropriate board on their eviction.
Some states and municipalities provide alternative mechanisms for landlord tenant disputes which include mediation and consultation with neutral housing specialists or attorneys. Return Service. Personal service of any notice is always preferable when possible. Some states require that it be served by a disinterested third party over the age of 18, others allow you to do it yourself if you wish. Michigan and several other states consider first class mail adequate service of the initial notice to quit. Most of us at RHOL use a process server or business associate because there are some tenants who will actually lie to buy time and claim that they were never served. In such situations, a witness helps.
I will always remember a case when we hired the court bailiff to serve a really bad news tenant. She stood in front of the judge on the day of reckoning and swore that she had never been served. The bailiff stepped forward and told the judge that he had served the notice and she was the person he had personally handed it to. That moment was worth practically every penny we have ever paid a process server. Return Court Date. When you have waited the required number of days after legal service, the next step is to visit the clerk of your landlord/tenant court. You will need a copy of your notice to quit and demand for payment, as well as the money to pay court costs. That amount varies considerably in each state and can run from a token amount to a hundred dollars or more. Return Summons and Complaint. When the clerk determines the next available court date, you will be required to fill out and file a Complaint form which tells the tenant and the court exactly what relief you are asking for. The complaint is usually for the total amount of rent due, court costs, service fees and possession of the premises. It is not a good idea to make a claim for physical damages to the property at the time you are seeking possession because you don't want to have to argue any fact not clearly in evidence by the written agreements. Disputes as to the who caused what damage could require a trial and the tenant could stay in your property rent free for months waiting for a court date.
You must also prepare a summons to appear which is attached to your complaint and served on the tenant. Personal service is usually required in order for a court to grant a judgment for money, in addition to possession. When personal service cannot be made, you may have to resort to what is commonly called "nail and mail," which consists of posting the summons and complaint on the door and mailing a copy. In many states the court can award possession based on posted notice, but they cannot grant a judgment for money. Return Accepting rent. When a landlord files for an eviction because of non-payment of rent, they usually have to accept the rent money anytime during the period specified in the notice. If the tenant offers to pay after the time of the notice has expired, you may, or may not, accept the rent. However, if the tenant owes, say $500, and you accept even $1 before your court date, you will have to start the process all over again from the beginning to collect the balance.
We at RHOL don't believe that you should ever accept any amount but the entire rent due, plus costs, once you have filed a summons and complaint. We often tell the tenant who wants to pay at that point that after the court has given us our judgment, we may except the rent and costs or make payment arrangements for them. Because, with our judgment in hand, and a writ for possession of the property, they can be put out immediately if they don't keep their word to pay as promised. UPDATE: Under many state laws, a tenant who is repeatedly served notice for nonpayment may have limited defenses. A court said that a landlord could evict a second time, as attempted payment was no defense where a summons was served more than once in a year. Return Contested evictions. A tenant is limited in their ability to contest a landlord's right to evict a tenant and take possession. Most states have enacted Summary Proceedings which allow for judgment without a trail of facts in an effort to prevent landlords from taking eviction into their own hands. If the landlords also seeks a judgment for damages or money claimed for rent, it usually moves that part of the case from summary proceedings to the regular civil court docket and slows that process considerably.
A tenant may have a right to a Warranty of Habitability in your state and always has a right to make counterclaims which may include, for example, health conditions, retaliation (see above), harassment, security deposit violations or improper eviction procedure.
Normally contested evictions are given preference on the court calendar, however, it could take up to six weeks to get a court date in many states. Return Consent judgments. Also known as stipulated judgments are granted when the landlord and tenant agree and inform the court they will sign a consent order. This judgment is recorded by the court an in the event that the tenant does not move or pay as promised, the court will usually grant an immediate writ for possession without further proceedings. Evictions for Cause. An important question arises if a rental property is federally owned, or federally funded but privately owned, as to when and how a tenant can be evicted. Many such tenants are at-will or month-to-month periodic tenancies which normally can be terminated with proper notice and without cause. However, in the case of publicly-owned housing, HUD regulations now specify that a tenant has due process rights before they may be evicted, and may only be evicted for just cause.
Where housing is privately-owned, but federally assisted, including Section 8 subsidized rents, a similar right not to be evicted without reasonable cause probably also exists. Courts have held that even though a tenant may have a month-to-month lease, tenants in publicly assisted housing have a right to an expectation that their tenancies will not be terminated without just cause and that they have a property interest deserving constitutional protection. Joy v. Daniels, 479 F.2d 1236 (4th Cir. 1973) |