When it comes to evictions, the Boy Scouts got it right: Be prepared.
Granted, the Boy Scouts probably weren’t talking about evictions (if they were, then hats off to the organization for teaching some real-life skills), but their advice is solid nonetheless. The eviction process is probably the messiest and most anxiety-producing you’ll experience as a landlord. Having your proverbial ducks in a row when you head into court for your hearing will help calm your nerves and ensure a more successful legal outcome.
The Tip of the Iceberg
Before you read further, let’s make one thing clear: If you haven’t done the eviction legwork ahead of time, there’s no point in heading to court. Eviction hearings are merely the visible tip of the iceberg, with all of the substantial work and preparation less visible and obvious.
This means that well before you go to court, and even before you’ve made the decision to evict, you need to begin documenting your actions and those of your tenants. The day before you’re scheduled to appear is not the time to start gathering evidence. Preparation needs to be done ahead of time (more about this later).
For now, we’ll assume that you’ve kept scrupulous records (an Eviction Record Timeline can help) and are well-versed in what is required by your jurisdiction when it comes to filing an unlawful detainer motion (“unlawful detainer” refers to the fact that because the terms of the lease have been broken, the tenant no longer has a legal right to live in the home. Ultimately, of course, this will be decided in court.)
The specific eviction notice, filing forms and requirements vary from state to state, and even within each state depending on the lease violation, so you’ll need to check with yours before proceeding. In general, though, before you can schedule a hearing, you’ll need to serve the appropriate eviction notices. Once you’ve filed the paperwork, a court date will be scheduled.
Building Your Case
The eviction notice has been served and the date has been set. Now what? Preparation is your best defense, and you’ll need to have several documents with you to present to the judge hearing your case. Although your documentation might vary depending upon the case you’re trying to build, you can count on needing much of the following:
Lease Agreement: A signed and dated lease agreement will show what the original terms were and allow you to explain how they’ve been violated. If you have addenda that were included with the original lease agreement, make sure you bring those as well. If you don’t have a written lease, it doesn’t mean that you don’t have a case. You’ll just have a harder time proving it.
Notices: You must bring a copy of the eviction notice you served on the tenant to the hearing. If you issued an informal warning or notice to your tenant, such as a late rent notice or an unauthorized pet lease violation, you’ll want to bring copies. Remember that bit about needing to do your work ahead of time? This is where issuing notices in a prompt and systematic manner pays off because you’ll have written proof that you tried to address the issue with the tenant in the past.
Conversations: Although you probably have documentation of written notices given, you may not have it for any conversations you’ve had with the tenant – you probably didn’t have an assistant taking dictation while you spoke. However you should, just as a general rule, make notes about anything that is shared verbally between you. If you haven’t been keeping written records, start now. Again, this is some of that work you should do long before you reach the eviction stage. Document any phone calls, including date and time, and describe in as much detail as possible what was said. You can do this for face-to-face interactions as well.
Emails: If any communication with your tenant was via email, print out copies. It might help to create a special folder in your inbox for each tenant. Filing the emails in the appropriate folders will make it a cinch to find and gather what you need. If you have the ability to request “read receipts” from your email provider, do so and save the notifications. (If you email documents to your tenants through ezLandlordForms, you can select to be notified when they’ve been opened.)
Receipts: If you’ve made any repairs due to damage caused by the tenant, save the receipts or bring copies of the estimates for the work that needs to be done. This goes for returned checks or any other paperwork that illustrates your history together, especially if it reflects the tenant’s wrongdoing. You can also use rent receipts to easily keep track of when and how the tenant paid you, as well as to make notes about individual payments. You may not need any of these, but if the judge asks, you’ll be prepared.
Photos: Pictures are vital for demonstrating damage to the property. The best way to show this is before-and-after shots. Make it a practice to take pictures of your property upon the tenant's move-in, and complete a Move-In/Move-Out Condition Checklist signed by both you and the renter. Label and date them (ideally with timestamps), which you can do whether the photos are digital or prints. Then take pictures of damage the tenant has caused. Since you can’t take your rental property to court, pictures are the next-best thing.
Witnesses: A written statement by a witness who may be able to substantiate your claim won’t hold up in a court of law, even if it’s written under oath. If you have someone who can help your case, he or she will need to appear in court. Think about the questions you’d like to ask the witness ahead of time so you’re prepared. (Buying your witness dinner afterward is also a nice gesture.)
And the Verdict Is…
Whether you represent yourself in court or you hire an attorney, having documentation is your best defense in an eviction case. You’re much more likely to get a ruling in your favor if you’re able to present strong evidence, and the best time to start working on that is now, ideally before the tenant moves in. Hopefully you’ll never need to follow your paper trail to court, but if you do you stand a better chance of finding yourself on the winning side, with no help required from a Boy Scout.