Q: How do you evict a tenant?

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Q: How do you evict a tenant?

Q: How do you evict a tenant?

answer-icon-masterWhen many landlords talk about evicting their tenants, they’re actually talking about simply not renewing their lease agreements. Evictions are different.

How do you evict a tenant?First Things First. What is an Eviction?

An eviction occurs when the landlord has a tenant removed from the rental property. The lawsuit to bring about an eviction is known as an “unlawful detainer” action; it is a legal procedure for getting rid of a tenant who has not moved out of a rental after the lease is properly terminated. To see some examples of reasons to evict a tenant, check out another Ask A Pro question: Q: What are good reasons to evict a tenant?

What is the Eviction Procedure?

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The specific procedure to evict a tenant varies based on the state you live in and the reason for the eviction. But, in a nutshell, there are two necessary components of a lawful eviction:

  • first, a notice terminating the lease, and stating the reason why, is properly served;
  • and second, if the tenant doesn’t fix the problem and also fails to move out of the rental, an unlawful detainer action (or eviction) is initiated.

What are Some Reasons for Terminating a Lease?

Typically, you can terminate a lease before the lease term is up for one of three reasons:

  • Rent: The tenant has not paid rent.
  • Criminal Activities: The tenant is involved in criminal activities, such as using or dealing illegal drugs.
  • Lease Violation: The tenant has violated rules or lease requirements, such as prohibitions on pets and loud music.

How Do You Terminate a Lease?

Most states require you to serve a notice terminating the lease before starting an eviction procedure. The type of notice depends on your particular circumstances, but typically one of three types of notice is required:

  • Pay Rent or Vacate Notice (aka Pay Rent or Quit): If your tenant hasn’t paid rent, this is the notice most states require. Typically these notices require that the tenant either pay rent in full or move out within a certain time period, ranging from 3 to 30 days, depending on the state.
  • Cure or Quit Notice: If your tenant has violated a term of the lease agreement, this notice will give the tenant a specified number of days to either resolve (or “cure”) the violation or move out. Typical rule violations include unapproved pets or other tenants in the rental; failure to pay late fees, utilities, or make other lease-required payments; or damage to the rental property that violates the lease agreement.
  • Notice to Quit: This is the most damaging notice for a tenant because it does not give the option of remaining in the rental if the violation is fixed within a certain timeframe. These notices are typically reserved for the most egregious lease violations, including repeated violations of a significant lease clause, such as failure to pay rent on time; serious damage to the rental property; or criminal activity on the premises.

Make sure that you are clear on the rules in your state for which type of notice is required, what must be included in the notice, and how to properly serve the notice.

If you make a mistake here, the next step in the eviction process–the unlawful detainer action–might be drawn out because the tenant could use your mistake as a defense. You may even have to start from scratch all over again. It’s usually a good idea to consult with an attorney or check in with your local landlord association to confirm the requirements.

What if the Lease Term is Ending Anyway?

In addition to terminating a lease early for a violation, you can also choose to not renew a lease, if you’re lucky enough that the lease will be terminating shortly. In this case, make sure you serve a Notice of Termination, or provide some kind of written notice of your intention, even if it’s not required.

  • Month-to-Month Leases: If the tenant is on a month-to-month lease in most states you can terminate the tenancy with a written Notice of Termination, which is also known as a Notice to Vacate. Time frames vary, but many states require 20-, 30- or 60-days notice.
  • Annual Leases: Most states require a Notice of Termination or other written notice at the end of an annual lease if you do not intend to continue renting the property to the tenant. In most states, annual leases become month-to-month leases when the 12 months are up.
  • One More Thing: Most jurisdictions do not require a reason for terminating month-to-month leases, however some cities (usually those with rent control) require a legal justification. For example, The National Housing Law Association reports that landlords in San Diego cannot evict tenants of two years or more except for cause; and owners of San Francisco rentals need good cause to evict if their rental properties are subject to rent control.

What Happens After the Notice is Delivered if the Tenant Doesn’t Cure and Move out?

Whether you provided a Notice to Pay Rent or Quit, a Notice to Cure or Quit, a Notice to Quit, or a Notice to Terminate, if the tenant fails to either “cure” the violation or move out by the deadline, you can then file an unlawful detainer action.

Briefly, unlawful detainers generally proceed as follows:

  1. You file required forms with your local court and have them properly served on the tenant, along with a summons and complaint. The complaint is the legal document describing the problem and seeking a solution. Again, it is very important that you comply with the notice requirements in your state’s landlord-tenant laws. Notice provisions are not optional or suggestions; they are requirements.
  2. At this point, if the tenant hasn’t moved out yet, receiving a court summons and complaint will often be enough to freak the tenant out enough to move. The tenant may also be more willing to settle outside of court after being served.
  3. A trial date will be set, and the tenant will have an opportunity to respond to the complaint in an “answer,” usually by denying the allegation or by asserting a justification or defense. Some tenants won’t file an answer on time, which makes your case easier. Other times the tenant will file an answer on time, and the unlawful detainer will be contested.
  4. In any event, if you win the judge will issue a “judgment,” which you can give to local law enforcement, usually the local sheriff.
  5. You will meet law enforcement at the rental where they will physically remove the tenant and his or her stuff. Change the locks at this point, not before. If your tenant wasn’t there but some things were removed, check into your state’s requirements for storing them.

Although many county courts, libraries, and nonprofit groups provide online eviction guidelines and forms for free to the public, we strongly recommend that regardless of where you get your information, make sure you trust your source, and check with an attorney before you take any action.

And here are some notes from the front lines:

  • When I was practicing law in Washington, my partner and I dealt with many landlord-tenant actions. In one case, we actually suggested to a rental owner that he pay the tenant to leave the rental property instead of filing an unlawful detainer action. Although he had a hard time swallowing it, he saved money on legal fees.
  • Since your tenants were awful, perhaps your screening process needs to be improved. Here are 5 Tips for Tenant Screening that you need to make your screening process more effective.

As always, the information provided here is just that–it is for informational purposes only and under no circumstances whatsoever should it be considered legal advice. If you have any particular questions or issues, please consult an attorney.

Author Bio
Author of the Landlord Chronicles blog, provides stories and “lessons learned” from her experience as a self-managed rental property owner. She helps owners decide if partnering with a property management company is beneficial.
Google+ Author Tracey March

 

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