-A Question and Answer Analysis-
Do you know what to do if your tenant is causing problems and/or not paying rent? It is surprising to find out that may landlords are unsure how to proceed if they have a problem tenant. Many landlords try to evict a tenant themselves and are frustrated by the legal process. Listed below are some of the questions most commonly asked by landlords. The following answers are an attempt to provide landlord or prospective landlords with the tools necessary to become a more effective manager.
Question: My tenant is not paying his rent. Can I just change the locks and throw him out?
Answer: No. A 1984 Court of Appeals decision establishes that a landlord may only remove a tenant from rental premises through a court proceeding. An eviction action (called a summary proceeding) is designed to provide the landlord with a quick method for regaining possession of the property while still protecting the rights of the tenant. “Self-help” remedies to remove undesirable tenants are illegal.
Question: Can I represent myself in a summary proceeding?
Answer: Yes. However, since a summary proceeding is a statutory remedy, there must be strict compliance with the procedural requirements of the law. Any failure to do so may result in the dismissal of the proceeding and the associated waste of time and money. It is often advantageous, both practically and financially, to obtain the services of an attorney who specializes in landlord-tenant matters.
Question: My tenant has not given me his promised security deposit, constantly pays his rent late, owes late fees and is causing damage to my apartment. Can I evict him?
Answer: Not in a non-payment proceeding. A non-payment proceeding may not be brought for failure to pay a security deposit and other charges, including late fees, or for damage to the property. However, an eviction proceeding may be possible if the actions of the tenant are in violation of the terms of a lease or of the law.
Question: My tenant owes me two months’ back rent. What needs to be done to start the eviction?
Answer: Prior to bringing a non-payment proceeding, a landlord must either make an oral demand for rent or serve a written notice, demanding the tenant to either pay the rent or to move out within three days. It is always preferable to make the demand in writing to help prove to a court that this procedural requirement has been met. The three-day notice must come from the landlord, not the attorney. A recent Court of Appeals decision states that if a landlord’s attorney sends a three-day notice, the attorney must comply with the Fair Debt Collection Practices Act, requiring a 30 day validation notice and a clear communication that the letter was an attempt to collect a debt. Consequently, an eviction action could not be commenced for 30 days, resulting in unnecessary cost and delay.
Question: My tenant’s lease has expired and I do not want to renew it. What do I need to do to get him out?
Answer: If it is the landlord’s desire to remove the tenant from the property, one would be advised to remind the tenant in advance, that the lease will be expiring and have the tenant make appropriate arrangements to move out at the end of the lease term.
If the tenant continues to pay rent after his or her lease expires, then the tenant is considered a “holdover”. The landlord must serve upon the tenant a 30-day notice to vacate. The 30-day notice should be in writing, if rent is due on the first of the month, the notice commences on the first day of the month following receipt of the notice and ends on the last day of that month. For example, if the landlord makes a 30-day demand on April 2, 1999, the 30 days will commence on the 1st of May and the tenant will have until May 31, 1999 to vacate. Obviously, it is advisable to send the 30-day notice towards the end of the month as opposed to the beginning of the month.
The landlord should be advised not to accept rent prior to the commencement of an eviction proceeding. If the landlord accepts rent, it implies permission for the tenant to stay on and reinstate the tenancy. The eviction in such cases will be dismissed. However, acceptance of rent after the commencement of the proceeding does not affect the proceeding itself. In general, the landlord should be advised to “hold” the rent in “escrow” until after the eviction action is completed.
Question: Can I evict my tenant if I just don’t want him as a tenant, without any other reason?
Answer: No. Not if the tenant has a lease. However, if there is no lease, your tenant is considered a “month-to-month” tenant and may be required to vacate the premises, upon 30 days notice, for any reason or no reason at all, as long as the termination of the tenancy is not motivated by illegal discrimination. The removal of a month-to-month tenant is handled in substantially the same fashion as a “holdover” tenant, as discussed above.
Question: My tenant is annoying, threatens other tenants, is causing damage to my apartment, and is basically a pain in the neck. Can I evict him?
Answer: A landlord may bring a proceeding against a tenant whom the landlord deems objectionable only if there is a lease provision which gives the landlord the right to send a termination notice based upon the objectionable conduct. A tenant who is destroying property or causing a nuisance may be sued for damages or to stop, but may not be evicted on those grounds without such a lease provision. An objectionable tenancy proceeding is a type of holdover proceeding, so a termination notice must be sent. The law also requires that the landlord establish, to the satisfaction of the court, that the tenant’s conduct is objectionable. Such conduct must be unreasonable or unlawful to the annoyance, inconvenience, discomfort, or damage to others. Mere annoyance, disrupting conversation, monetary upset or isolated incidents are not enough. The conduct must be reoccurring, frequent or continuous.
Question: Should I have a written lease?
Answer: Having a written lease is the best protection a landlord has over a tenant. After all, a lease is a contract between two parties and a written contract is always better than an oral contract. A written lease contains terms and conditions for which there can be no misunderstanding between the parties. Obviously, a written lease is signed by the tenant obligating the tenant to the terms and conditions thereof. A well written lease can provide a landlord with added protection against a tenant in the event problems arise, such as late charges, attorneys and other expenses for the tenant’s failure to honor the lease obligations. However, it is essential to understand that a lease also obligates the landlord to the terms of the agreement. That is, a landlord cannot elect to change the rent, the length of the lease or any other term of the lease, so long as it remains in effect.
Finally, a typical written lease has a term of one year. Therefore, it obligates a tenant to pay rent for a period of 12 months and obligates the landlord to allow the tenant to remain for 12 months. An oral lease creates only a month-to-month tenancy between the parties. That is, a tenant may move out of the landlord’s apartment upon 30 days notice to the landlord and the landlord can require the tenant to move out upon 30 days notice to the tenant. As such, a landlord is well advised to have an attorney prepare a lease or review an existing lease to make sure the landlord is fully protected from any potential problems a tenant may create.
Question: I believe my tenant is selling drugs. Can I evict him?
Answer: In order to be successful in an eviction action based upon the landlord’s belief that a tenant is selling drugs, the landlord should have documentary proof such as a police report or any other evidence that the tenant is selling drugs or is using his property for illegal means. Mere beliefs of a possibility that the tenant is selling drugs may not be enough to evict him.
Question: I have sent my tenant his 3-day notice, he has failed to pay me the past due rent and has failed to vacate the property. What do I do now?
Answer: Two papers must be served upon the tenant. The first is called a Notice of Petition. The notice must contain various assertions and items of information as required by law. The purpose is to notify the tenant of the eviction and the place and time the matter will be heard by the court. The second paper is called a Petition. The Petition must be signed with appropriate formality as required by law and must assert facts which, if true, would entitle the landlord to have the tenant evicted as a “holdover”. The landlord must also ask for the rent due (or the fair value of use of the premises if there is no current rental agreement) as well as possession of the premises.
Question: How fast can I get a court date?
Answer: Very quickly. A Notice of Petition and Petition must be served at least 5 days but not more than 12 days before the court date.
Question: Can the landlord serve the papers?
Answer: No. Because of some filing requirements with the courts, it is often advisable to obtain the services of a process server knowledgeable in the area of landlord-tenant practice or have your attorney arrange for proper service.
Question: My tenant is never home and always evades me. Does the process server need personal service?
Answer: No. Although service may be made by personal delivery, it is also sufficient for the papers to be delivered to a person of suitable age and discretion at the premises. This may be a teenager, a relative or some other individual residing at the premises. If, after reasonable effort, such personal or substituted service has been unsuccessful, the tenant may be served by attaching the papers to a conspicuous part of the property or slipping them under the entrance door and mailing copies to the tenant’s last known address. This is commonly referred to as “nail and mail” service. In the case of substituted service or “nail and mail”, the copies of the papers must be mailed to the tenant within 1 day of when they were left at the property, and sent by both certified mail or registered mail and first class mail.
The Notice of Petition, Petition and an affidavit of service must be filed with the court within 3 days of personal service or mailing. Service is not completed until the affidavit of service is filed. Failure to file the affidavit of service is grounds for the judge to dismiss the case even if the tenant shows up in court.
A landlord should be advised that if the process server is unable to obtain personal service upon the tenant, no money judgment may be entered at the time of the summary proceeding and it would be advisable to commence a small claims court action against the tenant if it is the desire of the landlord to attempt to collect past rent due.
Question: Can my attorney ask for attorney’s fees at the time of the summary proceeding?
Answer: Yes, but usually only if specifically agreed upon in a written lease. Therefore, the lease should specifically state that the tenant would be responsible for all costs of eviction and collection, including reasonable attorney’s fees. The landlord may not be awarded attorney’s fees if there is no lease and the tenant is renting on a month-to-month basis.
Question: Where do I commence the eviction proceeding?
Answer: In the court of the Town or City where the rental property is located.
Question: What happens in court?
Answer: The court will hear testimony by or on behalf of both the landlord and the tenant and will then decide if the facts and the law support the request of the landlord to have the tenant evicted. If so, the court will grant a warrant of eviction and issue a judgment for any rent which may be owed. If there are issues in dispute, the judge most likely will not decide it on that day, but will schedule the matter for hearing at a future date.
Question: What happens after the judge decides the tenant must go?
Answer: The Warrant of Eviction, issued by the court, directs the sheriff, marshall or town constable to remove the tenant from the premises. The officer serves a notice of the warrant on the tenant, giving the tenant 72 hours to move. After 72 hours, if the tenant has failed to vacate, the officer may “execute” the warrant by physically removing the tenant.
Question: What do I do with all of the tenant’s possessions if the tenant is physically removed from the property?
Answer: A landlord should take inventory after the tenant is removed and give the tenant a reasonable opportunity to return to the premises to remove the belongings. If the tenant fails to remove the belongings within 30 days, the landlord may consider the belongings abandoned and dispose of them as he sees fit. If practical, it is good practice to provide written notice to the tenant, in advance, of the intention to do so.
Question: How can I protect myself in the future to avoid a problem tenant?
Answer: It is very important to obtain a background check of any prospective tenant before he or she moves in. A prospective tenant should be required to complete an application which should include a list and telephone numbers of tenant’s prior landlords, financial and employment information, a copy of the individual’s driver’s license and several references. CHECK THE PRIOR LANDLORDS AND REFERENCES! The credit application should also provide tenant’s date of birth, social security number, a list of family members who will be living in the premises, a contact person in case of emergency, and information regarding the tenant’s vehicle. All of this information is helpful not only in deciding whether or not you want to rent to the individual, but also provides relevant information in the event that you obtain a money judgment and are trying to collect upon it. Remember, it is permissible to refuse to rent to someone, so long as your reasons are not discriminatory or unlawful.
In conclusion, it is beneficial for a landlord to be fully familiar, not only with his tenants but also with the requirements and rules relating to an eviction action. In this way, many potential problems can be avoided and those that are unavoidable may be addressed quickly and efficiently by the landlord and his attorneys.