Eviction

You are a landlord, renting your home to a couple whom you would like to leave. As soon as possible. No lease, they have been renting, paying each month on time; Or, let’s say they are late on rent. Regardless of the reason, you want them out.

What can you do?

In order to have a landlord tenant relationship there must be an agreement of some sort. There are, generally, two types of rental agreements.

FIRST type of rental agreement is the lease; normally in writing, though you can have a verbal lease for less than 1 year. The lease will last for a set period of time; require payment of rent at set intervals and will contain ALL the agreements of the parties (for example, if the landlord wants to prevent pets in the home, or want to impose some sort of late fee, they need to have this included in the lease agreement). If a landlord is demanding the tenant do something that is not covered in the lease agreement? That demand is likely not enforceable.

SECOND type of rental agreement is the Tenancy at will (sometimes called month to month rental agreement): This is where the landlord and tenant have an agreement on the rental fee and other terms of the agreement, but either party can cancel the agreement, simply by providing notice to the other party. Hence the name “tenancy at will”.

Fun fact: if you have a lease, and the lease term comes and goes, but the tenant remains and keeps paying rent? This is a case where you transition from a lease to a tenancy at will.

For a residential rental agreement, only the court can order eviction. This means that a landlord can not “change the locks”, turn off the power, or any other action that constitutes eviction until the court has ordered eviction and, if the tenant has not yet left, the Sheriff has arrived and removed them from the home.

And it does not matter if there is a formal rental agreement. You can invite a guest to live in your home, and after a period of time, perhaps as little as a week or two, that guest will have the same rights as a paying tenant.

The state you are in may have unique rules (for example, when a guest turns into a tenant, or how much time you have to give your tenant if you are telling them to leave, or what reasons you can use to evict), so you will want to spend a bit of time researching the laws in your jurisdiction. Check out our episode on legal research for help in this area.

The first step in the process is determining the basis for eviction.

If the eviction is based on the tenant not doing something they are supposed to do? For example, paying rent on time, or complying with some other provision in your rental agreement? This is called a “for cause eviction” and comes with a very specific requirement. You have to give the tenant “notice and opportunity to fix the problem”. This notice must be in writing, and it has to state the problem and give them time to fix it. And, perhaps most important as we mentioned before, it has to be covered in the lease.

For example, if the reason for the notice is not paying rent on time? The state you live in will have a clear rule on this. California, requires at least 3 days for the “pay or quit” notice while Nevada requires 7 days.

If the reason for eviction is something other than not paying rent? The landlord will still need to give the notice in writing, but the required will depend on the reason. The landlord must provide a “reasonable” amount of time to correct the problem. For many instances, this can be as short as a day or even less. For example, let’s say that as part of your rental agreement, the tenant has promised not to smoke in the home. And you learn that they are smoking in the home. You need to give them notice and opportunity…but it can be as simple as “if you smoke in the home again, we will start the eviction process”.

Now, if the eviction is for some other reason, not tied to your rental agreement? Say that you want to sell the home and would like them out before you sell? This is called a “no cause” eviction. This also requires notice, in writing, and the opportunity for the tenant to find a new place to live. Most states have a 30 day notice requirement. Some states longer. And some states, or subdivisions of the state, like county or cities, have rules that prohibit no cause evictions. So you need to do your research on this first. ALSO, you can only evict for “no cause” if you are in a tenancy at will (the month to month tenancy).

It is worth mention that if the goal is to remove a tenant, and they have broken a rental agreement provision (say they are late on rent), AND you are in a tenancy at will, you may want to give them two separate notices. The first one will be the pay or quit, the second would be the 30 day notice to leave. This way, even if they pay, as required, they are still on notice and required to leave at the end of the second notice period.

You will want to date the notice, deliver personally or have someone you know / trust deliver it, if possible. And you want to keep a copy. If you land in court, you need to be able to prove, to the judge, that you provided the notice…so keeping a copy and giving to the tenant in person will help you prove this.

If the tenant does not comply with your notice? Then the next step is to file for eviction.

You head down to your county court and speak to the clerk of the court. They will give you the forms to file. Once you file, you have tenant served and wait for your day in court.

At the hearing, be prepared to present your case. If the reason is “for cause” you have to prove the reason for eviction. So you need to bring a copy of the lease agreement (if you have a written lease agreement), or be prepared to prove the agreement if it was a verbal agreement.

Your testimony can go a long ways towards this. For example, if they did not pay rent, you can testify (tell the judge, under oath) that they never paid…unless the tenant can somehow convince the judge they did? That meets your burden, and the court can order eviction.

I have an episode on small claims court that may be worth a listen to get an idea of what to expect at the hearing.

Assuming the judge orders eviction?

You are almost there. After the eviction is ordered, with any luck the tenant will leave on their own. The Sheriff is the authority to enforce the court order…so if they still refuse to leave, the sheriff will come and remove them. After they have left, on their own, or after the Sheriff has removed them, then, as the owner of the home, you can change the locks.

What about the stuff they leave behind? If they left personal property behind? This is where you need to check the rules in your state. Some states allow you to dispose of the property immediately after the eviction is completed, while many states require you, as the landlord, to hold the property for a period of time to allow the tenant to recover the property.

What if they owe you money?

This is a separate issue, meaning any money owed to you would need to be resolved in a proceeding separate from the eviction hearing.

You will need to follow your state rules for managing their deposit (assuming they left a deposit). Generally speaking, you can deduct from their deposit any costs you incur from their rental. So, for example, if they owe you rent, or if you have to pay to repair damages left by the tenants, you can deduct these costs from the deposit. If they owe you more than the deposit will cover, you may need to sue them in small claims court.