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WALLER MITCHELL & BARNETT, ATTORNEYS
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If a tenant fails to pay the rent, keeps a dog in violation of a no-pets clause in the lease, repeatedly disturbs other tenants and neighbors by throwing loud parties or selling drugs or otherwise violates their lease or the law, the landlord can terminate the tenancy. This section provides an overview of the eviction process and warns landlords against taking shortcuts to get out of rental property, or terminate a tenancy in retaliation for a tenant's legitimate actions.

How Evictions Work - An overview of the eviction process, including the types of termination notices required for different situations, such as a tenant's failure to pay rent.

Eviction, that is, physically removing the tenant and his possessions from his rented home or apartment, can't be done legally until the landlord has gone to court and proved that the tenant did something wrong that justifies ending the tenancy.

A landlord can't proceed with an eviction lawsuit, let alone get a judgment for possession of the property or for unpaid rent, without terminating the tenancy first. This usually means giving the tenant adequate written notice, in a specified way and form. If the tenant doesn't move (or reform -- for example, by paying the rent or finding a new home for the dog), the landlord can file a lawsuit to evict. (This is sometimes called an unlawful detainer, or UD lawsuit.)

State laws set out very detailed requirements for landlords who want to end a tenancy. Each state has its own procedures as to how termination notices and eviction papers must be written and delivered ("served"). Different types of notices are often required for different types of situations. Although terminology varies somewhat from state to state, there are basically three types of termination notices:

  • Pay Rent or Quit notices are typically used when the tenant has not paid the rent. They give the tenant a few days (three to five in most states) to pay or move out ("quit").

  • Cure or Quit notices are typically given after a violation of a term or condition of the lease or rental agreement, such as a no pets clause or the promise to refrain from making excessive noise. Usually, the tenant has a set amount of time in which to correct, or "cure," the violation. A tenant who fails to do so must move or face an eviction lawsuit.

  • Unconditional Quit notices are the harshest of all. They order the tenant to vacate the premises with no chance to pay the rent or correct the lease or rental agreement violation. In most states, unconditional quit notices are allowed only when the tenant has:

  1. repeatedly violated a significant lease or rental agreement clause
  2. been late with the rent on more than one occasion
  3. seriously damaged the premises, or
  4. engaged in serious illegal activity, such as drug dealing on the premises.

Many states have all three types of notices on the books. But in some states, landlords may use Unconditional Quit notices for transgressions (such as late rent or violations of rental clauses) that merit Pay or Quit or Cure or Quit notices in other, more tenant-friendly states. In these strict states, landlords may extend second chances if they wish, but no law requires them to do so.

Landlords must follow state rules and procedures exactly. Otherwise, there will be delays in the eviction process while the landlord re-serves his notices or re-files his court papers. Failure to stick to the rules can sometimes lead to the loss of the lawsuit, even if the tenant has bounced rent checks from here to Mandalay.

Landlords often chafe at the detailed rules that they must follow. There is a reason, however, why most states have insisted on strict compliance. First of all, an eviction case is, relatively speaking, a very fast legal procedure. (How many other civil cases are over and done with after a few weeks?) The price to pay for this streamlined treatment is unwavering adherence to the rules. Secondly, what's at stake here, a tenant's home, is arguably more important than a civil case concerning money or business. Consequently, legislators have been extra careful to see to it that the tenant gets notice and an opportunity to respond. Many rent control cities go beyond state laws (which typically allow the termination of a month-to-month tenant at the will of the landlord) and require the landlord to prove a legally recognized reason, or just cause, for eviction of even month-to-month tenants.

Even if a landlord properly brings and conducts an eviction lawsuit for a valid reason, there is no assurance of a quick victory. If the tenant decides to mount a defense, it may add weeks, even months, to the process.

The way that the landlord has conducted business with the tenant may also affect the outcome: A tenant can point to a landlord's behavior, such as retaliation, that will shift attention away from the tenant's wrongdoing and diminish the landlord's chances of victory. Simply put, unless the landlord thoroughly knows her legal rights and duties before going to court, and unless she dots every "i" and crosses every "t," she may end up on the losing side.

Finally, if the landlord wins the eviction lawsuit, she can't just move the tenant and his things out onto the sidewalk. Typically, she must give the judgment to a local law enforcement officer, along with a fee which the tenant has paid as part of the landlord's costs to bring suit. The sheriff or marshal gives the tenant a notice telling him that he'll be back, sometimes within just a few days, to physically remove him if he isn't gone.

Illegal "Self-Help" Evictions - Landlords are subject to penalties if they take legal shortcuts, such as changing the locks or utility shutoffs, to get a tenant out of rental property.

As any experienced landlord will attest, there are occasional tenants who do things so outrageous that the landlord is tempted to bypass normal legal protections and take direct and immediate action to protect his property. For example, after a tenant's numerous promises to pay rent, a landlord may consider changing the locks and putting the tenant's property out in the street. Or, a landlord who is responsible for paying the utility charges may be tempted to simply not pay the bill in the hopes that the resulting lack of water, gas or electricity will hasten a particularly outrageous tenant's departure.

Any landlord who is tempted to take the law into her own hands to force or scare a troublesome tenant out of her property should heed the following advice: Don't do it! Shortcuts such as threats, intimidation, utility shutoffs or attempts to physically remove a tenant are illegal and dangerous, and anyone who resorts to them may well find herself on the wrong end of a lawsuit for trespass, assault, battery, slander and libel, intentional infliction of emotional distress and wrongful eviction. So, although the eviction process can often entail considerable trouble, expense and delay, it's the only legal game in town.

Landlords who take matters into their own hands often think that their behavior will be excused by the tenant's egregious conduct. However, the fact that the tenant didn't pay rent, left the property a mess, verbally abused the manager or otherwise acted outrageously will not be a valid defense. While the landlord can file her own lawsuit for damages or back rent, she will very likely lose the lawsuit brought by the tenant for illegally evicting him. Defending this lawsuit will cost far more than evicting the tenant using legal court procedures.

Virtually every state that forbids "self-help" evictions also imposes penalties for landlords who break the law. Tenants who have been locked out, frozen out by having the heat cut off or denied electricity or water can sue for their actual money losses, such as the need for temporary housing, the value of food that spoiled when the refrigerator stopped running or the cost of an electric heater when the gas was shut off. They may also sue for penalties as well, such as several months' rent. In some states, the tenant can collect and still remain in the premises; in others, he is entitled to monetary compensation only.

Even in states that have not legislated against self-help evictions, landlords who throw tenants out on their own run a risk of serious practical and legal entanglements. The potential for nastiness and violence is great -- picture the arrival of a patrol car while tenant and landlord wrestle over the sofa on the lawn. Landlords are frequently surprised at the appearance of a lawsuit over the "disappearance" of their tenant's valuable possessions, which the tenant claims were lost or taken when the landlord removed her belongings. Using a neutral law enforcement officer to enforce a judge's eviction order will avoid these unpleasantries.

Landlords Who Pretend That Property is Abandoned - A few states allow landlords to freely dispose of a tenant's leftover property when he has moved out. This is legal only if it is quite clear that the tenant has left permanently, intending to turn the place over to the owner. Landlords shouldn't take a tenant's property under the guise of handling "abandoned" property. Seizing property under a bogus claim that the tenant had abandoned it will expose a landlord to significant monetary penalties.

 
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ROLAND D. WALLER THOMAS W. MITCHELL, JR. BEVERLY R. BARNETT
 

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