Common Eviction Mistakes & How to Avoid Them
When leasing residential property, a landlord at some time or another will have to consider eviction for a delinquent tenant. The most common eviction is for the non-payment of rent. It becomes a matter of when you will have to resort to eviction, to protect your rental property.
The goal is to ensure your property makes as much money as possible without suffering a considerable loss. Evicting a tenant is a time-consuming and costly process. However, it is worth the time and cost to start generating income on your rental property as quickly and efficiently as possible.
It is vital to avoid the common mistakes landlords make while attempting to evict a tenant. Some steps must be taken first before you can evict. The bottom line is that if you plan to evict a tenant before the expiration of the lease, you must support it with legal cause. Keep in mind; an eviction is the only way to regain your property.
To avoid any delays in the eviction process, you must first compose an eviction notice. The notice’s purpose is to notify the tenant of your intentions to proceed with the eviction process if they do not pay within a certain amount of days. Each state has different laws for the number of days a tenant has to either pay the rent or quit (move out).
Review the residential lease agreement executed by both parties. Confirm certain specifics were outlined, so both the landlord and tenant understand the process and penalties in the event of a breach. Upon review, you may find that you need to revamp your residential lease agreement for future use to avoid any issues that should arise.
Mistake 1: Respect the Process
If a landlord does not follow the proper steps as the law requires, they may be required to start the process over again, including the initial notice period. The landlord should not “take the matter in his own hands,” also referred to as self-help evictions.
Even in situations where the tenant has not paid rent for several months, the landlord is not able to do the following without going through the proper eviction process and without a court order:
- Shut off utilities
- Change the locks
- Enter and remove the tenant’s possessions
- Unlawfully harass the tenant
If any of the above or other unlawful acts are performed without a court order, a Judge would likely allow a tenant to stay until the proper process is followed.
Mistake 2: Legal Cause to Evict
A landlord cannot simply issue an eviction notice because they don’t like the tenants. They must have failed to pay rent, violated the terms of the lease, caused property damage, broken local ordinances, or created health or safety violations on the property.
Mistake 3: Failure to Give Proper Notice
One of the most common mistakes is when a landlord fails to give proper notice. If you have attempted to collect past due rent and the tenant remains uncooperative, you can proceed with the notice of eviction. Again, you must provide notice before you can file an eviction and court or perform an unlawful self-help eviction.
An eviction notice should include a deadline to pay or move out. Confirm your state laws to determine the days the tenant has to respond to the notice. The notice should accurately include the total amount owed, the name of any tenant listed on the lease, the address of the leased property, and the reason for the notice. The landlord should also ensure that the letter is dated and signed.
Mistake 4: Improper Service of Eviction Notice
One of the most significant elements of an eviction notice is how it is delivered. Proper service will ensure it is held up in court if the eviction proceedings are commenced. There are a few methods of service for an eviction notice:
- Certified Mail with Return Receipt
- Private Process Server
- Personal Service
- Substitute Service and Mailing
- Affixing Notice to Door
If the notice is not adequately served, with proper proof in support, the court will likely not proceed with the eviction until the parties are served with the appropriate notice.
Next Steps in the Eviction Process
If the tenant does not provide a response to the notice, you can commence the eviction proceedings in court by filing for what’s known as an Unlawful Detainer. You will locate the proper courthouse for filing and pay the filing fee (varies from county to county). The clerk will schedule a hearing and issue notice to the tenant(s) via a summons.
Gather Evidence & Prepare to File
Once the tenant is late on his/her rent, the landlord should keep a record of all missed payments and any late fees that should follow. The documents and files you gather can be used as evidence in court. Some relevant documents to have at the hearing include a copy of the executed lease agreement, copies of any communications between you and the tenant, and payment records.
Be sure to bring a copy of the eviction notice you served, and the proof of service for that notice. Keeping records will expedite the process and prove to the Judge the eviction should be carried out. Without sufficient records, the Judge may not be inclined to grant the eviction until supporting documentation can be provided to the court.
If the Judge grants the eviction, the court’s Order will identify the amount of time the tenant has to vacate the premises. The amount of time provided for the tenant varies from state to state, but it is usually anywhere from 48 hours to a week.
Should the tenant refuse to leave or decide not to vacate by the date on the Order, the landlord has the right to have a sheriff remove the tenant’s possessions to the curb. The sheriff can also physically escort the tenant of the property.
Eviction is a daunting process, but unfortunately, it comes with the territory of being a landlord. It is important to screen potential tenants and see if they have any evictions on their record. It is also crucial to review your residential lease agreement to ensure it is up-to-date and includes the specifics of the eviction process in the event of a breach.
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