You worked and saved your hard-earned money. You have risked your credit and financial reputation to purchase real estate. You purchased the rental property that is going to create passive income each month. You painted, remodeled, maintained and prepared the rental unit and you put it on the rental market. You finally found the right family that would rent it from you. The family consisted of a husband and wife and two small children. Now all you have to do is sit back and put the money into your bank account each month. You are now on the road to financial success to earn your first million dollars. Right?
That family, like half of the population in the United States, begin to fracture and ultimately ended in divorce. Now the wife can’t pay the rent without the assistance of her estranged husband. What happens now?
What happens if one of the parents lose their jobs or suffers a disability and is not able to bring income into the home to pay you the rent. What happens now?
Who pays the rent? How do you pay the mortgage? What do you do to get the tenant out?
Don’t Use Self-Help to Evict a Tenant
A self-help eviction occurs when a landlord retakes possession of a property without using the eviction process. The use of self-help may amount to landlord harassment. Nearly every state prohibits a landlord from using self-help to evict a tenant. A state’s legal eviction procedures apply regardless of what a tenant has done or how a tenant behaves. Even if the tenant has not paid rent, has destroyed property, or has violated a term in the lease or rental agreement, a landlord may only legally remove the tenant by following state eviction procedures.
A landlord should avoid the following self-help methods:
- Allowing utility companies to cut off service by failing to pay the bill
- Changing the locks
- Removing the tenant’s property from the rental unit
- Threatening the tenant
- Ordering the tenant to leave
Liability for Evicting a Tenant Illegally
Courts frown on self-help evictions, and may readily award a tenant damages for an illegal removal. If a landlord does illegally evict a tenant, the tenant may sue the landlord for trespass, wrongful eviction, assault, battery, slander, libel and the intentional infliction of emotional distress.
A tenant’s behavior will not shield a landlord from liability
The tenant is entitled to actual money damages for the expenses resulting from the illegal eviction. This may include compensation for temporary housing, for the food that spoiled when the electricity was cutoff, or for property that disappeared when the tenant was locked out by the landlord. Some states may allow a tenant to recover monetary penalties, such as two or three months rent or two to three times the actual damages. A tenant may also be able to remain on the premises, receive free occupancy, or vacate the premises and collect their security deposit from the landlord.
Evict a Tenant Lawfully
Instead of using landlord harassment and other illegal means to force a tenant to vacate a rental property, a landlord should follow applicable state laws when evicting a tenant. Although it may take longer and cost more money, it will protect a landlord from hefty fines. Because eviction procedures vary in each state, the following are general guidelines for evicting a tenant.
Step 1: Serve the Tenant with a Proper Notice.
Before a landlord can go to court to remove a tenant, the tenancy must be terminated. A landlord may terminate a tenancy with or without a reason. Cause, or a legal reason, may be necessary to terminate a tenancy regulated by rent control ordinances, however. To evict a tenant for cause, three types of termination notices are available:
- Pay rent or Quit: The tenant must pay rent within a set time (usually three to five days) or vacate the rental unit.
- Cure or Quit: The tenant must correct a violation of the lease or rental agreement within a certain time.
- Unconditional Quit: The tenant must vacate the premises without the opportunity to cure the violation or pay the rent.
To remove a tenant without cause, the landlord must serve the tenant with a 30-day or a 60-day notice to vacate the property.
Step 2: File an Eviction Lawsuit.
If the tenant fails to cure the violation or refuses to vacate the premises within the specified time, the landlord must file an unlawful detainer action to have the tenant lawfully removed. The landlord must file a “complaint” with the court. A complaint contains the facts that justifies the eviction and may contain a request for back rent and damages. The landlord must serve the tenant with the complaint, along with a summons, which is the document informing the tenant of the lawsuit.
Step 3: Wait for the Tenant’s Answer.
The tenant can respond to the complaint with an “answer” within the time specified on the summons. The tenant may use the answer to deny the allegations or submit a defense. A tenant, for example, may assert that the eviction is retaliation or that the missing rent was used to make necessary repairs that the landlord refused to make.
Step 4: Receive a Judgment for Possession.
If the tenant does not respond to the complaint, a default judgment is issued for the landlord. If the tenant does respond with an answer but the court rules in favor of the landlord, that judgment entitles the landlord to possession of the property.
Step 5: Remove the Tenant.
Even though the landlord is entitled to repossess the property, the landlord cannot remove the tenant without the assistance of a law enforcement officer. Once an officer, typically a marshal or a sheriff, receives the judgment and a fee, they will notify the tenant of the lawful eviction and the number of days the tenant has to move. If the tenant fails to vacate the property within the time specified, the law enforcement official may physically remove the tenant.
Need Legal Assistance? Get a Real Estate Attorney
Sometimes a tenant causes more trouble than it’s worth — whether it’s late rent payments, complaints from neighbors, destruction to your property — and they need to go. But you still need to follow the law when evicting a problem tenant. Get a real estate attorney match today and learn more about the law. If you have any questions contact the Law Office of Andrew H. Griffin, III APC at email@example.com or call (619) 440-5000.