When a tenant goes to jail, their landlord ends up in a sticky situation. Many landlords make the mistake of promptly changing the locks on the unit and clearing out the tenant's belongings. However, just because your tenant goes to jail doesn't mean the rental agreement goes away.
Think of it this way: If you were forced to spend a year in jail, you would still expect your tenant to continue making rent payments to your family. Likewise, even when a tenant goes to jail, you must continue to honor your end of the lease agreement. If the lease hasn't expired, you can only end the lease agreement via the standard eviction process in your state.
The bottom line: Even if your tenant goes to jail, if you simply shut off the utilities and change the locks without a court order restoring the property to your control, you may be guilty of a self-help eviction, which is illegal in all 50 states.
First, confirm the tenant is, in fact, incarcerated. Don't take a neighbor's word for it. Look them up via your local corrections department. Often, searching for mugshots in your county can get you to a page listing recent arrests. (These are public records.)
If you can't locate the tenant, call their emergency contacts. Don't tell them any information—just say you need to contact the tenant. If you mention you heard the tenant is incarcerated and they aren't, you could be giving them a chance to sue you for defamation.
The ideal solution: You locate the incarcerated tenant and you're able to visit him or her in jail, or arrange for a notary public to have them sign a document stating they have vacated the unit. As an incentive, you may agree to store the tenant's property until they get out, or waive back rent charges that may be uncollectible anyway. This is often a better solution for them than getting out of jail in a few months and finding that everything they owned is gone.
This document should grant you explicit permission to dispose of property in the unit, or to release it to a specific named individual who comes to pick it up. The document should also include a 'hold harmless' clause, relieving you of any liability for lost or missing items. Have an attorney write the release document for you. Here's a model property release document from the Landlord Protection Agency.
So, should you file to evict if a tenant goes to jail? Maybe not. Just because a tenant goes to jail doesn't mean the rent won't get paid. They may have enough savings to keep paying for a while, or they may be able to get friends and family to help out.
In many cases, a tenant who goes to jail will have a significant other living in the unit who may be capable of paying the rent. Often, the significant other wasn't on the lease. If that's the case, you can add them to the lease (with the permission of your jailed tenant), but always run a background check first.
When a tenant goes to jail, be extremely cautious with boyfriends and girlfriends who aren't on the lease, especially if you can't contact the tenant to confirm their identity. They could be robbing your tenant blind while they're in jail, or causing damage to your property—and you'd be unable to trace them to recover costs.
Very often, the significant other won't have the resources to continue paying rent for very long after the tenant goes to jail. If an eviction is imminent, you may be able to help them out by referring them to a church or aid organizations that may be willing to provide rent assistance, especially if there are children in the home.
If you do want to evict the tenant, you may be able to evict for abandonment. Check your state's laws defining abandonment for this purpose. In most cases, you can consider the unit abandoned if rent is not paid and there's been no sign of the tenant for a certain number of days. Obviously, if the tenant is jailed for any significant length of time, he or she won't be able to come pick up their property.
To minimize problems up front when a tenant goes to jail, make sure you have solid emergency contact information on all tenants from the time they sign a lease. That way, if you notice that a tenant has disappeared for a while, or if a tenant's property needs to be picked up, you'll have someone to call.
Another way to eliminate ambiguity is to include a clause in your rental agreement specifying that being convicted of a felony is considered grounds for eviction.
Sometimes a tenant is arrested on domestic violence charges, leaving his or her significant other in the home. In this case, you should consult a qualified attorney, as specific laws may apply. For example, under the Violence Against Women Act, you cannot evict a victim of domestic violence simply because violence occurred on the property. You can, however, split the lease—a process called bifurcation—allowing the victim and other family members to remain in the unit. Essentially, you're evicting the perpetrator of the domestic violence incident.
This means that even if you had a clause in your lease that a felony conviction is grounds for eviction, you would not be able to evict other family members simply because the perp is jailed for domestic violence.
As always, with any legal proceeding, it's best to obtain the advice of a qualified attorney before taking any action. Furthermore, when a tenant goes to jail, it's obviously a difficult situation for everyone involved. A little communication goes a long way toward preserving your interests, the tenant's, and those of the tenant's family.