Chapter 17 Late Rent, Terminations, and Evictions

• Library: Every Landlord's Legal Guide (Nolo) (2020 Ed.)

CHAPTER 17 Late Rent, Terminations, and Evictions

The Landlord's Role in Evictions

Termination Notices

Late Rent

Legal Late Periods

Accepting Rent After You Deliver a Termination Notice

Other Tenant Violations of the Lease or Rental Agreement

Giving Tenants Another Chance

Criminal Convictions

Violations of a Tenant's Legal Responsibilities

Tenant's Illegal Activity on the Premises

How Eviction Lawsuits Work

What Court Hears Evictions?

First Steps: The Complaint and Summons

The Tenant's Answer to the Complaint

The Trial

The Judgment

How Tenants Can Stop or Postpone an Eviction

Eviction

Illegal "Self-Help" Evictions

Stopping Eviction by Filing for Bankruptcy

Unfortunately, even the most sincere and professional attempts at conscientious landlording sometimes fail, and you need to get rid of a troublesome tenant—someone who pays the rent late, 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 your agreement or the law.

Termination is the first step toward an eventual eviction. You'll need to send the tenants a notice announcing that the tenancy is over, and that, if they don't leave, you'll file an eviction lawsuit. Or, you might send the tenants a notice giving them a few days to clean up their act (pay the rent, find a new home for the dog). If the tenants leave (or reform) as directed, no one goes to court.

Eviction itself—that is, physically removing tenants and their possessions from your property—can't be done until you prove to a court that the tenants did something that justifies ending the tenancy. If you win the eviction lawsuit, you can't just move the tenants and their things out onto the sidewalk—in most states, you must hire the sheriff or marshal to perform that task.

This chapter explains when and how you can terminate a tenancy based on nonpayment of rent and other acts. It also provides an overview of what you can legally do—and not do—following a termination notice.

RELATED TOPIC

Related topics covered in this book include:

• Rent control laws that require a legally recognized reason, or "just cause," to evict: Chapter 3
• Evicting a resident manager: Chapter 6
• Substantially failing to maintain rental property so that tenants cannot use it (constructive eviction): Chapter 9
• Ending a month-to-month tenancy with a 30-day notice: Chapter 14
• How to end a tenancy at a property that you have purchased at foreclosure: Chapter 14
• Using a security deposit to cover unpaid rent after you've evicted a tenant: Chapter 15
• How to use a warning letter, negotiation, or mediation to resolve a dispute with a tenant: Chapter 16
• How to get legal help for an eviction lawsuit: Chapter 18.

CAUTION

Watch out for charges of retaliation. Landlords in most states may not end a tenancy in response to a tenant's legitimate exercise of a legal right, such as rent withholding, or in response to a complaint to a housing inspector or after a tenant has organized other tenants. What if your tenant has exercised a legal right (such as using a repair and deduct option) but is also late with the rent? Naturally, the tenant will claim that the real motive behind your eviction is retaliation.

In some states, the burden will be on you to prove that your motive is legitimate if you evict within a certain time (typically six months) of a tenant's use of a legal remedy or right. In others, it's up to the tenant to prove your motive. Chapter 16 includes advice on how to avoid charges of retaliation, and Appendix A gives details on state laws prohibiting landlord retaliation.

RESOURCE

California landlords should consult The California Landlord's Law Book: Evictions, by Nils Rosenquest (Nolo). It contains eviction information and tear-out court forms.

The Landlord's Role in Evictions

The linchpin of an eviction lawsuit (sometimes called an unlawful detainer, or UD, lawsuit) is properly terminating the tenancy before you go to court. You can't proceed with your lawsuit, let alone get a judgment for possession of your property or for unpaid rent, without terminating the tenancy first. This usually means giving your tenant written notice in a form and manner specified by law. If the tenant doesn't move (or otherwise comply with the notice), you can file a lawsuit to evict.

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"). The type of notice required often depends on the situation. You must follow state rules and procedures exactly.

Otherwise, you will experience delays in evicting a tenant—and maybe even lose your lawsuit—no matter how many checks your tenants have bounced.

Because an eviction judgment means the tenants won't have a roof over their heads, eviction laws are usually very demanding of landlords. In addition, rent control laws tend to offer even greater eviction protection to tenants, by requiring landlords to have a legally recognized reason—known as " just cause"—to evict.

Alternatives to Eviction
Before you proceed with an eviction lawsuit, consider whether it might be cheaper in the long run to pay the tenants a few hundred dollars to leave right away. A potentially lengthy lawsuit—during which you can't accept rent (and might not ever be able to collect even if you win)—can be more expensive and frustrating than buying out the tenants and quickly replacing them with better ones. Especially if there's a possibility that your tenants might win the lawsuit (as well as a judgment against you for court costs and attorneys' fees), you could be better off compromising—perhaps letting the tenant stay a few more weeks at reduced or no rent.
Chapter 16 provides tips on avoiding an eviction lawsuit by negotiating a settlement with problem tenants.

Even if you follow all procedures and bring an eviction lawsuit for a valid reason, you are not assured of winning if the tenant decides to mount a defense. You always run the risk of encountering a judge who, despite the merits of your position, will hold you to every technicality and bend over backwards to sustain the tenant's position. The way that you have conducted business with the tenant might also affect the outcome: A tenant can point to behavior on your part, such as retaliation, that will shift attention away from the tenant's wrongdoing and sour your chances of victory. Simply put, unless you thoroughly know your legal rights and duties as a landlord before you go to court, and unless you dot every "i" and cross every "t," you might end up losing. Our advice, especially if your action is contested, is to be meticulous in your business practices and lawsuit preparation.

It is beyond the scope of this book to provide all the step-by-step instructions and forms necessary to terminate a tenancy or evict a tenant. This chapter will get you started, and Chapter 18 shows how to research termination and eviction rules and procedures in your state. Many are clearly set out in state statutes. Other useful resources for eviction procedures and forms include:

• the website of the court that handles evictions in your area (see, for example, the Michigan Courts' Self Help Center at www.courts.mi.gov/self-help/center)
• your state consumer protection or attorney general's office (find yours at www.USA.gov/state-consumer)
• your state bar association (for example, the Florida State Bar website, www.floridabar.org, includes sample eviction forms), and
• your state or local apartment association.

California landlords should use the Nolo book described in the "Resource" section above.

Termination Notices

You can terminate a month-to-month tenancy simply by giving the proper amount of notice (30 days in most states). You do not normally need to provide a reason for the termination. Leases, on the other hand, expire on their own at the end of their term, and you generally aren't required to renew them. (In a rent control situation, however, you'll need a just cause for refusing to renew a lease on substantially similar terms.)

When tenants do something wrong, you usually won't want to wait until the tenancy comes to its intended end. State laws allow you to end tenancies early by serving tenants with one of three types of termination notices. Which one you should use depends on the reason why you want the tenants to leave.

Although terminology varies somewhat from state to state, the substance of the three types of notices is remarkably the same:

• Pay Rent or Quit notices are typically used when tenants have not paid the rent. The notice gives the tenants a few days (three to five in most states) to pay or move out ("quit").
• Cure or Quit notices are typically given after tenants violate 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. Typically, tenants are given an amount of time in which to correct, or "cure," the violation. Tenants who fail to cure must move or face an eviction lawsuit.
• Unconditional Quit notices are the harshest of all. They order tenants 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 tenants have repeatedly:

• violated a lease or rental agreement clause
• paid rent late
• seriously damaged the premises, or
• engaged in illegal activity.

Many states have all three types of notices on the books. But, in some states, the unconditional quit notice is the only notice recognized by statute. Landlords in these states are free to give tenants an opportunity to cure, but no law requires them to do so.

You might have a choice among these three notices, depending on the situation. For example, a Wisconsin landlord may give month-to-month tenants an...