Updated January 1, 1 . AmFam Team
It’s a situation you hope you’ll never be in, but if you’re a landlord, you’ll probably have to evict a tenant at one point or another. With a business to run, and income only generated when you’re collecting rent, your investment’s financial wellbeing depends on swift and decisive action.
There are many reasons why a tenant may need to be evicted. These tips will focus on tenants that have not met their financial obligations to pay the rent, or have otherwise broken the covenants in the lease which mandate their eviction.
Your landlord’s team of experts roster isn’t complete without legal counsel. Note that state laws and local codes vary one to the other. The documents do you need to evict a tenant can shift depending on where your rental’s located.
You should also have your attorney look over your lease agreement before you sign your first tenant. If you ever need to evict a tenant, you’ll be glad you did. Here’s what you need to know:
Work within the law. Just because you own the rental property, you’re not legally allowed to lock your tenant out. You’re also not able to terminate the utilities or change the locks on your own accord. If the tenant’s breached your rental agreement be sure that any action you take isn’t going to sting you later.
“Self-help eviction” actions like these may delay the evictions, or even open your business up to a costly lawsuit.
Remove the tenant legally. Keep your emotions in check and show cause by carefully documenting tenant encounters. You’ll be glad you’ve got your well-documented notes should it come time to evict.
Be ready to pay out of pocket. Even though your lease may have terms requiring the reimbursement of all legal fees, court filing fees and related expenses, you may not get paid back by the tenant. Do your best to document expenses and file receipts away in the event that you need to claim them on your business taxes.
As a new landlord, you should be working with a lease that was supplied by your lawyer. And that’s a great place to start because their legal advice can protect you and your business when the time comes to evict tenants.
Regardless of where your rental property is located, you need to learn about the laws and codes in force there on federal, state and local levels.
There are many different causes for eviction. From non-payment of rent to violating lease covenants and other legitimate causes, each can require you to take unique actions. And the paperwork you’ll be required to file will vary as well.
Varying from one state to the other, there are three basic notices of termination that landlords serve to their tenants. In all cases, you’re going to need proof the notice was sent. This can be accomplished with a certificate of mailing from the USPS or by getting a signature from an adult member of the tenant household to verify receipt of your notice.
If you deliver the notice by hand, make certain you have a witness who will sign the receipt as well stating that the document was received by an adult. Take photos of both the witness’ and the receiving adult’s IDs upon signing and keep them with your files to present to the judge later.
When delivering notice via US mail, be sure to get a “certificate of mailing” from the post office. Note that this is not a certified mail receipt. You can also look online for “USPS form ps3817 (Opens in a new tab)”.
The mail clerk will verify that the data on the document matches the addressee’s and will then postmark the certificate of mailing. Bring the original and photocopies when you go to court.
Depending on the type of lease agreement, you’ll give the tenant either thirty days to vacate in most standard, annually-renewing leases or sixty days with most month-to-month contracts. Again, check with your real estate lawyer and abide by those terms.
In short, the “cause” is the reason why you’re evicting the tenant. Here are the types of “with cause” termination documents/notices:
Pay rent or quit notice. This is the typical document that landlords will hand off to tenants for non-payment of rent. Usually allowed three to five days to take action, the tenant can either pay the rent or quit, and move.
Cure or quit notice. When a covenant or term in the lease agreement has been broken — other than when the tenant doesn’t pay the rent — landlords will serve this document to the tenant. Similar to the pay or quit notice, tenants have a limited window of days to cure — meaning fix the issue or problem — or move.
These types of notices are typically used when a tenant is illegally keeping a pet on site, or when noise complaints become too frequent. If they don’t resolve the issue within the given amount of time, they could be subject to eviction proceedings.
Unconditional quit notice. Reserved for the harshest circumstances, unconditional quit notices are handed to tenants that have repeatedly violated important lease terms. Situations meriting a notice of this kind relate to being consistently late in rent payments, seriously damaging rental property, or engaging in some form of illegal activity on rental property.
After giving the notice to vacate to your tenant, you’ll have to give your tenant a few days to respond. They may pay the rent, cure the issue or move out in that time.
If they don’t comply with the notice and continue to live in your rental, you may need to take further action to evict. Once you’ve filed all of these documents with the court, you’ll then serve them to your tenant. Here’s how to file a summons and complaint:
Determine the proper court to file in. Depending on the amount of money owed you by the tenant, you may have to file your paperwork in a specific court. Search online for your court’s required tenant eviction documents, or get these from your attorney.
Know the details and state them clearly. You must date, sign and print your name on each of these documents. Be aware that you’ll be officially swearing that all the information in the document is true — under penalty of perjury.
Even matters related to belief are sworn to be true to the best of your knowledge. If you’re not sure about any statements or facts in the document, verify them before submitting these files to the court.
The complaint outlines the issue you’ve got with the tenant and identifies the steps you took to get news of your issue to the tenant. Here are the basics of filling out the complaint:
Print out a copy of your lease agreement. Attach this document to the complaint, usually titling it Exhibit 1.
Get your dates right. It’s really important that you review your tenant’s lease and fill these forms out accurately. A small mistake — even one that may seem unimportant — can delay your tenant’s exit, costing you more unpaid rent.
Attach a copy of your notice to quit. With it, bring the signatures and print out the photos of the ID you took if you served the notice by hand. Other supporting data like printouts of tracking numbers, photos of the signature will also be important to prove that delivery was verified.
Identify which notice to quit you presented to the tenant. Usually a checkbox will be provided in the forms for you to select the correct option.
You’ll need to file a summons in order to force the tenant (defendant) to appear in court in order to proceed with the eviction. Along with that, you’ll need to file the complaint which outlines the offense, the remedy and the amount the tenant owes.
Fill out the paperwork accurately. Again, get your addresses and dates correct here.
Send a certified check to the court. Some states will mandate that court and administrative costs are paid at this time. If necessary, send a certified check written to the court-payable entity. Personal checks may not be accepted. Your lawyer can help you determine the amount due.
Have your attorney look over everything before filing. Yes, lawyers can be expensive. But they can also expedite the time it takes to get the tenant out. You may be able to recover these costs. Because your lease agreement includes terms that require the tenant to pay all legal fees related to their breaking the agreement, they’re legally obligated to pay.
The cover sheet directs the judge to important sections of each document and helps to explain the situation. These typically act as a guide to the court, identifying the type of filing and briefly describe the reason for the action.
Because your rental is not generating income, you may choose to use the show cause process to free the space up so you can begin renting it again.
In circumstances where you want the tenant out immediately, and before a trial, you can file an application for a show cause hearing. There, you’ll request a “temporary writ of restitution” — the court order mandating the tenant’s removal.
The show cause hearing is where you’ll present the evidence you’ve put forth in the above documents to prove to the court that the tenant’s in breach of contract. It’s also there where the tenant will have an opportunity to refute those charges.
You’ll need copies of the above documents you’ve previously submitted to be attached into the temporary writ of restitution. Once this document is submitted, you’ll be able to deliver, or “serve” the order to the tenant. This is usually done by a constable of the court or a sheriff.
And there you have it. The eviction process is underway — soon your tenant will be served. You’ll be required to appear in court, and state your case. After winning in court, the sheriff will get to the tenant and provide paperwork for the tenant to sign, making the process official.
As you’re reviewing how your state and local authorities require landlords to process and serve evictions, be sure to check in with your American Family agent (Opens in a new tab). Be sure to explore added business coverages that can help protect your investments. When you’ve got the insurance you need to keep your business running smoothly, you’ll find real peace of mind.