When things turn sour with a tenant who hasn’t paid the rent, or who has broken other terms of a lease, it’s time to consider eviction. Evicting a tenant is a stressful event, and it is rarely an easy process. To compound matters, there are so many myths about the legal steps that can and cannot be taken during eviction. One pervasive fiction is that tenants can’t be turned out of the rental during cold weather.
Is this true? Mostly, no. However, there are actions that a landlord may not take during the eviction process. There are also very strict regulations about cutting off heat-related utilities when the thermometer plummets.
Cold weather property management needs your attention, from preparing for snow removal to insulating water pipes. And, you should set a procedure in advance for dealing with a winter eviction. Understand the facts about eviction, no matter what the weather is; and follow the proper notice-to-quit process to ensure that your rental stays profitable year-round.
What circumstances could block an eviction?
Legal evictions rest on a landlord’s grounds to remove the tenant. This generally means the tenant must have broken a rule (or rules) listed in the lease agreement, and the landlord has sent the required notice to quit. The eviction process applies in cases of both written and verbal agreements. The violation could be active, such as hosting a loud party that disturbs neighbors, damaging the rental structure, committing a crime, or moving an authorized occupant into the home. It could also be passive violation, such as not paying rent, not maintaining the rental, not fulfilling a responsibility defined in the lease, or not moving out when the lease term ends.
There are some circumstances that could delay or even prevent an eviction. The court will take into account any failure on the landlord’s part to follow the correct, legal process. If the landlord missed a step, or tried to evict based on an illegal premise, the court is likely to deny an eviction claim. A denial could be based on one of the following:
• Landlord failed to send the tenant a notice to quit or cure.
• Landlord is evicting in retaliation for the tenant complaining.
• Landlord tries to evict based on a reason that is considered discriminatory.
• Landlord failed to send tenants proper notice of nonrenewal before end of lease term (when one is specified in the lease).
• Tenant stopped paying rent because the rental unit is uninhabitable.
What if it’s freezing out?
Winter evictions in the U.S. and in Canada follow the same rules for evictions during other times of the year. After a court approves a landlord’s order of possession, the order must be carried out by authorities if the tenant doesn’t leave on his or her own. The outside temperature is not a consideration in virtually any eviction enforcement. Tenant advocacy organizations stress this fact to renters who ask about the eviction process.
However, in a very few cases, delays can occur due to the cold. In Cook County**, Illinois, for example, sheriff’s deputies have routinely delayed eviction enforcement when temperatures are below 15 degrees. The eviction judgement is official, but the sheriff’s office holds off on the actual ejection. And, if the court’s possession order expires before temperatures rise above 15 degrees, the landlord must pay the sheriff’s office a rescheduling fee to set another eviction enforcement date.
Cook was the only location we found that routinely imposes cold weather delays; however, any landlord who evicts during winter should ask if the local court sets any special rules for evictions in winter.
Can landlords cut off utilities if rent is not paid?
The worst thing a landlord can do is to take the law into his or her own hands. If a tenant isn’t paying rent or is breaking the rental agreement in some other way, the correct reaction is to send a notice, and then file for eviction. Otherwise, continue complying with the terms of the lease. Don’t withhold services, change door locks, or take other illegal measures to force out a tenant — no matter how many rent payments have been missed.
Landlords must also continue to provide water, gas, or electricity if those services are specified in the lease. If the lease dictates that tenants register and pay utilities in their names, and power is shut off for non-payment, the landlord should consult with an attorney before taking action to either restore power or switch utilities back into the landlord’s name.
Courts have gotten particularly sensitive to cases where the poor have lost access to heat in winter citing, among other concerns, the tendency to use kerosene or wood to heat, and the potential for fire. In fact, states have set their own guidelines that utility companies must follow before cutting off power for nonpayment. The federal Department of Health and Human Services lists each state’s guidelines, here.
Keep track of all unpaid rent and fees, and any unpaid utility bills, so that, if your case does go to eviction court, the judge can include those amounts in any favorable judgement. Landlords don’t have to put up with unpaid rent, and they are not expected to forego profits during winter. But the wrong measures can compound your problems. To be on the safe side, review eviction rules for your state and city before you start the process. And, if you are responsible for paying heat bills, keep paying throughout the process until the eviction is enforced, and the tenant is gone.
* A written rental agreement makes rules clear, and a landlord can easily point to a violation. An oral lease is more difficult for the landlord to enforce, because each party may remember a conversation differently; the landlord may face difficulty proving that a rule existed.
** Cook County has also delayed carrying out eviction orders between Christmas and New Year’s Day.