Termination and Eviction Overview for Landlords and Tenants – Part 1
Termination and Eviction Overview – Part 1
When a tenant fails to materially perform according to his lease agreement, a landlord must decide the appropriate course of action to protect his investment. For many landlords the better business decision sometimes is to terminate the tenancy and file an eviction lawsuit.
Eviction is the legal process to remove a person from occupation of real property. However, before an eviction lawsuit can be filed, a landlord must first serve the tenant with a legal notice of intent to terminate the tenancy.
State statutes are specific in their procedures to terminate tenancy and conduct an eviction. A landlord should be thoroughly familiar with applicable state statues, case law, and local court of jurisdiction procedures. Failure to follow proper procedures can result in a dismissal or even the loss of the eviction lawsuit, no matter how egregious the tenant’s violation.
Termination Notices
The type of termination notice and required notice period are determined by state statute and the type of default. Generally there are three types of termination notices.
Pay Rent or Quit
The most common reason for an eviction action is non-payment of rent. In most states, if the tenant is late with rent, the landlord must give the tenant a written notice of the time period (usually a number of days) in which the tenant has to pay rent or move out (quit). If the tenant does not pay rent or move-out, the landlord can file for eviction. In some states there is a legal late period before the landlord can serve the notice to pay or quit.
Cure or Quit
If the tenant violates a condition of his lease agreement, a landlord can notice the tenant with a specified amount of time to cure the lease violation, cease the lease violation, or move. In some states a landlord can file for eviction as soon as the cure period expires; in other states, the tenant may be allowed additional time to vacate. In many states, a landlord can terminate with an Unconditional Quit notice.
Unconditional Quit
Unconditional Quit notices allow landlords to terminate a tenancy immediately or within a short period of time for repeated violations of lease terms and conditions, acts of damage, nuisance, or illegal activity. The tenant is ordered to vacate the premises with no chance to cure or cease the violation.
Many states have all three of the above types of notices on the books. In many states the Unconditional Quit notices are the only notice statutes.
Termination of tenancy is the first step in the eviction process. However, when the noticed deadline expires, the tenant is not automatically evicted. In almost every state a landlord must file and win an eviction lawsuit before local law enforcement officers can physically evict a tenant who refuses to leave after receiving a termination notice.
Common Reasons for Eviction
There are many reasons that a landlord may bring legal action to remove the tenant from the rental property. As noted above, the most common reason for eviction is non-payment of rent, followed by chronic late payment of rent, or repeated violation of lease terms. Lease violations could be a breach of the tenant’s statutory duties regarding waste or nuisance, health and safety, or a breach of a material condition of the lease agreement. If a tenant holds over once his lease agreement has expired (with no renewal or extension of the lease by the landlord) a landlord will need to give notice to the tenant to leave, and if the tenant does not comply, the landlord can file an eviction lawsuit.
Individual landlord lease agreement clauses may specify various terms and conditions which protect his rental investment and help prevent harm to others. Material violations of any of those lease clauses could also form the basis for an eviction lawsuit.
There can be circumstances when a landlord must take immediate legal action to evict a tenant. In the event the tenant poses a danger, such as drug dealing or engaging in other illegal acts, 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.
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 other circumstance that should be remedied by termination of the tenancy. He must show not only a breach that permits termination of the lease, but also that he complied with all statutory procedures, such as the Complaint and Summons and service of process.
The tenant has the right to due process and the court may extend a bias towards the tenant who presumably could be at the mercy of the landlord. The landlord’s prior conduct towards the tenant and his entire relationship with the tenant will also come into scrutiny if the tenant defends against the lawsuit. Even with fully documented proof, a landlord is not guaranteed to win an eviction lawsuit. A landlord should take nothing for granted.
Self-Help Evictions
In almost all states landlord self-help evictions are illegal. Any attempts using methods outside the legal system to force the tenant to move, such as utilities shut-off, tenant lock-out of the rental property, or seizure of the tenant’s personal property, can subject the landlord to substantial legal penalties for actual and/or punitive damages, court costs, attorneys’ fees, or other orders as determined by the court. Any activity that is or may be perceived as illegal, threatening, humiliating, abusive or invasive of a tenant’s rights or privacy could be used to file a lawsuit against the landlord.
Courts of Jurisdiction
The important determination before initiating any legal action is whether one party has suffered damage because of the other person’s action or lack of action. If there is no damage, there is no cause for legal action.
If there is cause for legal action, the action must be taken in the appropriate court of jurisdiction. Since landlord-tenant laws are state statutes, evictions are the business of state level courts.
Eviction lawsuits can be filed in a formal trial court, in a small claims court or, in a few states, in a special court such as Landlord-Tenant Court.
While some states give landlords a choice of courts in which to file an eviction lawsuit, other states specify the court that must be used. If the landlord has a choice of courts between formal trial courts and small claims courts, there are several important considerations.
An important determination is the dollar amount that the landlord is seeking. If the amount of unpaid rent exceeds the dollar limits set by the state’s small claims court, the landlord must use a higher court or accept a lesser amount that can be awarded in small claims court.
Another consideration in the landlord’s choice of courts is the issue of attorney fees. If the landlord’s lease agreement provides for payment by the tenant of “court costs and attorney fees in any action or legal proceeding to enforce the agreement,” the landlord may want to consider filing the eviction lawsuit in a higher trial court.
In this option the landlord will be relying on winning with a strong case, and a good chance of collecting all funds from the tenant. If the tenant is already in dire financial trouble, the chances of collecting the awarded fees might be slim to none, at least in the near future. In that instance, the landlord is probably better off filing his lawsuit in the small claims or equivalent court.
There are other important difference between a formal trial court and a small claims court.
The rules of small claims courts are not as formal as the municipal court rules. There is no discovery period. The landlord will present his case to a judge or magistrate by telling his story without worrying about legal language and strict procedural formality and the tenant will do likewise. After each side has presented its case, the judge will make his ruling. Even though the court operates somewhat informally, neither the landlord nor the tenant is allowed to ramble on or bring up issues that are not germane to the issues at hand. The landlord must, however, be prepared with his facts, backed by evidence, to prove his case.
In a formal court the landlord and the tenant may use pre-trial discovery to gather information to support their positions. During discovery, each side may question witnesses under oath (depositions), submit written questions for response (interrogatories) and pose requests for admissions that the other party, again under oath, is obliged to admit or deny. The information gained during the discovery process may be used during the trial.
Also, in a formal court a landlord will need to produce proof that the tenant’s breach of a term or condition of the lease agreement was a material breach, sufficient to warrant a termination of tenancy. In addition, before a landlord can present his case for termination, he will need to provide evidence that certain conditions existed before the breach. A landlord can call upon witnesses, submit letters or reports, use information gained from pre-trial discovery, and provide photographic evidence that can be substantiated through witnesses.
While many experienced landlords routinely conduct their own evictions in the courts, many others prefer to have an attorney specializing in landlord-tenant law handle their evictions. There are, however, some circumstances when a landlord should consult with an attorney before proceeding with the eviction action, such as when the tenant is already represented by an attorney, has filed for bankruptcy, or is contesting the eviction. There may be other factors such as rent control rules or the property location that could require obtaining legal counsel.
In a future article, the eviction legal procedures of Complaint, Summons, Service of Process, and Tenant Answer will be discussed in some detail.