Landlord Eviction Actions
As warranted by a tenant’s material default of the tenant’s duties and responsibilities under the lease terms and conditions, it may become business necessity for a landlord to take legal action to physically remove the tenant and the tenant’s personal property from the rental unit.
A Lawful Eviction Process is required
To legally re-gain possession of the rental premises, a landlord must use the court system to conduct an eviction. A landlord has the burden of proof to show that there is a material breach of the lease agreement or specific circumstance that should be remedied by termination of the tenancy. The landlord must show not only a tenant breach that permits termination of the lease, but that he complied with all statutory procedures of the legal process. A landlord’s failure to comply with the proper legal procedures for the court of jurisdiction can result in a dismissal or loss of the eviction lawsuit.
Common Reasons for Eviction
The most common reasons for eviction are non-payment of rent, chronic late payments of rent, or repeated violations of lease terms. Lease violations could be a breach of the tenant’s statutory duties regarding committing waste or nuisance, health and safety violations, property damage or conduct that interferes with other tenants’ quiet enjoyment of the rental premises.
Required Evictions
There can be circumstances when a landlord must take immediate legal action to evict a tenant. If the tenant engages in illegal acts, such as drug dealing, in most states the landlord must take immediate legal action to evict the tenant or risk substantial criminal penalties and/or possible confiscation of the rental property according to public nuisance abatement and forfeiture laws.
Illegal Evictions
Any action taken by a landlord outside the legal system to force or intimidate a tenant to move from the rental premises is illegal. While the tenant’s default may be egregious behaviors, a landlord cannot use the tenant’s conduct to excuse his own behavior. A landlord has no valid defense for a self-help eviction against the tenant. The legal process to evict a tenant can be time consuming. The landlord will be anxious to resolve the issue, re-gain possession of the property and potentially an award for past due rents and damages. But, by trying to circumvent the law in a hurry up attempt to force the issue, a landlord opens himself up to legal actions for wrongful eviction and tenant claims for trespass, assault, battery, slander, libel, and intentional infliction of emotional distress.
Self-Help Eviction Tactics
A self-help eviction could be a direct or indirect action by the landlord to force or scare the tenant into moving. It is illegal for a landlord to:
- Threaten the tenant with violence
- Behave in a harassing manner toward the tenant
- Attempt to physically remove the tenant from the rental premises
- Post threatening notices on the tenant’s door
- Lock out a tenant by changing all the locks on the rental premises
- Shut off the essential utilities such as electric, water, and gas services
- Refuse to make repairs as required for habitability
- Decrease or deny tenant access to services or amenities
- Remove the tenant’s personal possessions from the rental unit
- Dispose of the tenant’s personal possessions
Consequences and Penalties of Self-Help Evictions
The consequences of a landlord illegally conducting a self-help eviction vary from state to state. In some states the court will determine the amount of damages awarded to the tenant. In other states, a tenant may sue the landlord for any amount of damages. Actual damages including tenant compensation for lost or stolen personal property, temporary housing and essential services, punitive damages, civil penalties, or money damages as specified by statute may be awarded to the tenant. Statutes may hold the landlord responsible to pay the tenant’s court costs and attorney fees and may give the tenant the right to stay in the property. If the tenant elects to terminate the lease, the landlord must return the entire security deposit.
Retaliatory Eviction
A tenant’s exercise of his legal rights can sometimes lead to the landlord taking retaliatory action against the tenant, including eviction or changes in lease terms and conditions. In most states a tenant is afforded protection from landlord retaliatory actions when the tenant exercises a legal right such as:
- The right to complain to the landlord regarding health and safety problems of the rental unit.
- The right to file a complaint with appropriate government agencies or local authorities regarding unsafe, unhealthy, or other conditions that render the rental unit/premise unfit, uninhabitable or prevent the tenant’s use of quiet enjoyment of the premises. As a result, the tenant’s actions may cause the public agency or authority to conduct inspection of the rental unit/premises that could result in a notice for corrective actions or citation to the landlord for unfit housing.
- The right to remedy the landlord’s failure to repair and maintain the rental unit/premises through such means as: repair and deduct, rent withholding or filing a lawsuit.
- The right to be free from discriminatory conduct based on protected classes, federal, state, and local. The tenant has the right to file a complaint with appropriate administrative agencies or the courts if the tenant feels that his rights have been violated.
- The right to privacy by limiting a landlord’s access to the rental unit to permissible purpose for entry and statutory notice requirements.
- The right to participate in political activity or organize or join a tenants union without fear of intimidation or harassment.
A retaliatory eviction is illegal. A tenant has an affirmative defense to a landlord retaliation eviction. The landlord has the burden to prove there was a valid business reason of a non-retaliatory nature for his actions in filing an eviction.
Most state landlord retaliation laws will presume a landlord has a retaliatory motive if the time between the tenant’s action of exercising a legal right, such as making a claim to a regulatory agency for health and safety concerns, and the landlord’s action, filing for the eviction, is within a short period of time. The period of time varies in those states that have anti-retaliation laws from 3 months to one year. In general a landlord filing an eviction action within 6 months of a tenant’s exercise of legal rights is presumed by the courts to be a retaliatory act.
A landlord should carefully consider every action taken as response or in reaction to a tenant’s exercise of a legal right Any landlord activity that is or may be perceived as illegal, threatening, humiliating, abusive or invasive towards a tenant, that interferes with the tenant’s rights or violates the tenant’s privacy could be used by the tenant to defeat a landlord’s eviction action. The landlord should view his actions from a perspective of how those actions might be perceived by a judge. The landlord’s prior conduct towards the tenant and his entire relationship with the tenant may also come into scrutiny by the court during eviction proceedings. The presumption of retaliation can be difficult to overcome in a subsequent eviction action.
While the legal process of eviction may cost the landlord considerable time and expense, there is no other legal alternative for removing a tenant from the rental property. The tenant is entitled to due process of law and the landlord is obligated to follow applicable statues in the eviction process.