Why Does Eviction Take So Long?
You want your tenants out and you want them out today. You have been more than patient, your tenants are taking advantage of you, and things are only going to get worse.
So, why can't you just kick them out immediately? Wouldn't any judge understand that eviction is appropriate under these typical scenarios?
- Tenants haven't paid rent in months.
- Tenants let other people move in and never told you or asked permission.
- The last time tenants let you in to inspect, you saw the unit was trashed.
These examples – among many others – are lease violations and landlords do not have to put up with them. And, yes, action is definitely called for. Unfortunately, far too many landlords make wrong assumptions about the action they are permitted to take.
No matter how negligent, rude, unfair or expensive a tenant or lease violation is, and no matter how long it has gone on, there are certain legal steps the landlord must take. Taking shortcuts or trying to “get back” at a tenant will backfire. Without taking the proper steps, a landlord cannot:
- Change the locks.
- Place tenant possessions on the curb.
- Ask the police to remove the tenant.
- Enter the rental unit without notice.
- Threaten the tenant with harm.
But my friend heard that it's okay to…
Oh, if we had a quarter for every time we heard that. Everyone who's watched an episode of TV’s “Judge Judy” thinks they know the law, but Judge Sheindlin does more than interpret law. She also exercises wisdom gained through her 40 years on the bench.
How many of the friends or family members offering you eviction advice have that kind of resume?
Landlords certainly need support, because property management is a tough job and not everyone is cut out for it. So, the smartest thing you can do when you seek advice on evicting a tenant is to choose a reliable source. For some, advice will come from a lawyer. Others will study their community's landlord tenant laws. Often, other, experienced landlords share their experiences.
The very best source on how to evict a specific tenant is the lease that the landlord and the tenant signed. (For rentals that are occupied by someone who never signed a lease, see “Have they established tenancy?” below.)
A good lease defines how unpaid rent shall be handled. It establishes fees and other consequences for lease violations. It is legal proof that a tenant agreed to certain rules and now is breaking them. When a tenant is evicted, the lease will be referred to again and again by the landlord, tenant and court.
It can take time to evict, but landlords do have some control over how quickly things happen. It depends how quickly the landlord takes action.
Notices, notice, notices…
When you forget to pay the electric bill, what does the utility company do? They send a notice. When a book you reserved at the library comes in, the librarian calls or emails a notice. When folks don't get around to shoveling snow from city walks, the municipality sends a notice.
None of these entities wait to see what might happen. They don't watch the calendar and count the days that go by, hoping you'll realize that your bill/book/snow needs to be taken care of.
Landlords, however, are often guilty of playing the waiting game. Sometimes, the landlord will call or drop by the unit and verbally remind a tenant that rent is overdue. They may send the tenant an email or text. Those measures have no teeth. They offer little or no proof that steps have been taken.
A written notice should be prepared immediately after a lease violation, and should be given to the tenant. This isn't the landlord getting nasty or pushy; instead, it is the legal way to establish proof that the landlord has noticed a violation and has informed the tenant. It is the step that a judge, lawyer or court official will expect to see before eviction complaints can be filed.
Plus, the written notice starts the clock on an eventual eviction. If the notice doesn't motivate the tenant to pay overdue rent or fix other violations, the way is cleared for the landlord to file an eviction complaint in court.
But my tenant won't answer the phone and hides every time I come over
Notices can, in most cases, be delivered in person, posted on the door of the rental unit, or sent by certified mail. The person delivering the notice completes an Affidavit of Service, or a signed statement declaring that they have delivered the form.
There's also a great procedure that can be used in cases where a tenant is playing possum. It's called process serving. A private process server or a deputy working for an elected sheriff is paid to personally deliver the written notice to the tenant.
Fees average $60 per notice served. The cost depends on how quickly a notice must be served and how many times a server must visit the property to connect with the tenant. If that fee sounds steep, think about the mounting total of unpaid rent.
In most cases, the landlord who wants to evict will need to show proof that the written notice was successfully delivered to a tenant. A process server can help meet that requirement. Another advantage with using a server is that a tenant who is handed a notice by a process server no longer doubts that the landlord is serious.
Have they established tenancy?
What if the landlord wants to evict someone who was never approved as a tenant in the first place? Many landlords think that the law is completely on their side if the person they want to evict never signed a lease. They think situations like these give them the automatic right to evict:
- Person is squatting in the rental property.
- Person is living there on a verbal agreement.
- Person stayed behind when a former tenant moved out.
- Person is a family member for whom the landlord briefly provided a place to stay.
- Person is a friend who briefly needed a place to stay.
But here's the fact: Nearly anyone who is living in a rental has established tenancy merely by living there for a time. Each community may have different rules, but conditions that are considered in determining if someone is a tenant include whether they:
- Pay rent
- Receive mail at the address
- Moved their possessions into the unit
- Have lived in the unit for 30 days or more
- Have no other residence
If a squatter, or a guest of a prior tenant, or any other person meets the tenancy definition, the landlord must send them written notices that the “lease” arrangement will not be renewed and that the “tenant” must move out. Required notice typically is between one week and 30 days.
How do I avoid tenants who don't pay rent and trash my rental?
Great question! A thorough background check on your potential tenants will save you heartache; do it before signing your next lease. This importance of this step cannot be overstated.
Then, write a solid lease. Add fees for late rent. Schedule regular inspections so damages can't be hidden for months. Strong leases send tenants the message that the landlord takes property management seriously, like it's a business, which it is.
Landlords who behave professionally and who make their rules clear tend to have less tenant trouble. That doesn't mean landlords should be hard-nosed and hostile. It means that they plan for worst-case scenario, and they state in the lease what the consequences will be.
The last thing any landlord should do when a tenancy turns bad is to take things into his or her own hands. Courts don't like tit for tat; they like procedure. It may feel really unfair, and a resolution may be a few weeks – or even months – away. And that stinks.
While you're waiting for the eviction process to end, turn to productive tasks. Draft the next lease, plan clean-up at your rental, and start sending out rental applications. Narrow down the applications to top candidates and order their background checks. That way, when the eviction is finished, you'll be ready to move forward with better results.