A landlord’s worst nightmare is being cursed with a tenant that refuses to vacate or move out. The law provides extensive protection for your tenant, so you must tread carefully when it comes time to formally evict a tenant. As long as you follow proper laws and procedures, you’ll be protected should the issue make its way to court. However, many landlords question what exactly they should do if they find themselves renting to a bad apple?
Below, we’ve compiled the best practices to follow should you find yourself in this position.
Eviction – What to do first
First things first, you should try to informally approach your tenant to figure out what the problem is that is causing them to violate their rental agreement. There’s always the possibility that they simply forgot to pay rent because they’ve been busy. However, much of the time, you’ll find that there are bigger issues at play, such as job loss or tumultuous family changes that are causing your tenant to violate their rental agreement.
Once you’ve determined that the problem isn’t going away with an easy fix, you should begin gathering all the evidence that you have and, from then on, only correspond with the tenant in writing. This will ensure that if you end up in court, you will have evidence to back up your side of the story and will most likely have judgement rule in your favor. At this point, you should understand that any friendship you have with the tenant is most likely over; treat your relationship with the tenant as professionally as possible. This does not mean, however, that you should get overly emotional about your tenant’s violations. Although it can be emotionally draining to have tenants living in your property who have not paid rent, you must act professionally so that you are protected in case of a lawsuit.
Before moving on to official eviction process, you can try to incentivize your tenants to move out by offering them “cash for keys.” In a cash for keys agreement, you will pay your tenants an agreed upon amount of money to get them to vacate the premises quickly. This agreement allows you to spend less than the costs of the eviction process (on average $3500) and turn the unit around quickly. If you and the tenant agree to cash for keys, ensure that you have an agreement in writing that the tenant has signed in order to protect you from a wrongful lawsuit.
Types of eviction notices
You will not have to worry about a formal eviction process if you chose to terminate a month-to-month rental agreement or to not renew a fixed period lease. In this case, you simply must provide you tenant with a reasonable notice that you will not be renewing the agreement; for most states you must let them know at least 30 days in advance, but it varies throughout the country.
If you must terminate a rental agreement before the agreed upon time is complete, there are three types of eviction notices you can give to your tenants to get them out.
1. Pay Rent or Quit
This notice is what you will use if a tenant has failed to pay their rent. When you serve a renter with this notice, they will have a set amount of time, usually 3-5 days, to pay their rent or vacate the premises. This notice lets your tenants know that you are serious about their rental payments and will usually get them to pay up. If they do remedy the situation and pay you, they will not be evicted. However, if they still fail to pay their rent in the time allotted, you can file the eviction with the court to get them out.
2. Cure or Quit
You will have to serve a tenant with a Cure or Quit notice if they have violated a condition of the rental agreement; this does not, however, include failure to pay their rent. Violations that may be covered under this type of notice include: keeping an animal that is not a service animal in violation of a no-pets rule; subleasing the unit without permission; having an unapproved roommate; and/or harassing other tenants and inferring with their peaceful living.
Much like the Pay Rent or Quit notice, a Cure or Quit notice gives the tenant a set amount of time, anywhere from 3-30 days, to correct the violation before they must vacate the property. If they fix the violation, they may stay in their unit, but if they do not, you can move on by filing the eviction notice with the court.
3. Unconditional Quit
If a tenant has repeatedly violated their rental agreement within a set period of time, you may terminate their tenancy using an Unconditional Quit notice. This notice orders the tenant to move out usually within 5-10 days with no chance to fix the violation. For example, if your tenant repeatedly pays their rent late and you have given them multiple Pay Rent or Quit notices, you can serve them with an Unconditional Quit notice; this will not give your tenant a chance to pay their late rent and will require them to vacate. You can also use this notice if the tenant has violated other terms of the rental agreement more than once.
Because the notice is the most severe of the three, some states do not allow this notice to be filed. Look into state laws to see what the conditions are for using this notice. Once you do serve the tenant with this notice, they will legally be required to vacate the dwelling or take you to court.
Helpful tips on filing eviction notices
All of your notices should include a strict written deadline and the amount your tenant owes you (if applicable). To serve the tenant with the notice, you should tape the notice to their front door AND send it to them via USPS certified mail with a return receipt requested. Lastly, make sure that you give the tenants the required number of days to respond or fix the violation before officially filing the eviction notice with the courts.
After the eviction notice
If nothing has changed even after you have given the tenant a notice, you’ll have to file your eviction notice with the courts. This will cost you a small fee but will be necessary to get the tenants out of your property. Soon after filing, you will be scheduled for an official hearing and the court will send a summons to the tenant to notify them. Thankfully, you will not be responsible with letting them know you are taking them to court.
Once in court you will have to show proof that you have given the tenant the legally required amount of time to respond to the notice; your receipt from USPS certified mail will suffice. You will also have to prepare for and attend the court hearing. Beforehand, you should compile all documented evidence that supports your claim. This includes, but is not limited to, rental agreements, bounced checks, records of payments of any kind, a copy of the written notice you provided your tenant, and dated proof that the tenant received the notice (tenant’s signature or a post office receipt). Be prepared that the tenant may try to claim that you didn’t give them proper warning of the eviction, so it is essential that you have all evidence to disprove this.
As long as you are honest and have adequate evidence to support your case, the court will likely rule in your favor. If and when it does, your tenant will have a set amount of time to vacate the property; the amount of time depends on the state, but it is usually 2-7 days. If the tenant does not leave in the amount of time set by the court, then you can call a police officer to escort them and their possessions out of the property.
Collecting rent past due
If you have evicted a tenant and they owe you back rent, then you will also have to take them to small claims court to get what they owe you. Your first option is to combine the lawsuit with your eviction lawsuit. However, only some courts will allow this, so you may have to file an additional lawsuit separately.
After the lawsuit, if a judge determines that the tenant does, in fact, owe you money, you will receive a judgement in the form of a court order, which you can give to the tenant’s employer in order to garnish their wages until you are paid back.
Because this can often be difficult, you can also try to garnish a tenant’s tax refund to get your money back. The states that do allow for tax refund garnishment will usually only allow you to file your judgement in a certain window throughout the year, so verify your state’s rules before submitting anything. You will also need to fill out a Non-periodic Garnishment form and include the tenant’s name, social security number and last known address. Send the form to the state through state certified mail so that you receive a receipt. Finally, you will receive your money come tax season.
If you don’t want to do the work yourself to garnish the tenant’s wages or tax refund, you can simply go through a debt collection agency. Not only will the agency take care of getting your money back, but they will also report the offense to the three major credit bureaus. Although this is the most convenient option, it is also the most expensive.
What does the law say about eviction?
If you want to get rid of a problem tenant, you must legally terminate the tenancy through an eviction notice in order to avoid a possible lawsuit. Never take matters into your own hands; self-help evictions are illegal in every state. Therefore, you should never remove the tenant’s possessions, physically remove the tenant, change the locks, shut off essential utilities, and/or try to harass the tenants off the property.
Be aware of the Uniform Residential Landlord and Tenant Act (ULTRA), which has been adopted by 21 states. This will give you a basic understanding of your right and your tenant’s rights. If you’ve followed all the applicable laws and your tenant has broken your lease agreement and/or laws, a judge will likely rule in your favor and the tenants will be forced to vacate.