If you own or manage rentals long enough, you’ll eventually have to go through the eviction process.
Evictions are expensive, time-consuming, and fraught with pitfalls. No really; they can take anywhere from two to twelve (12!) months. Many landlords make matters worse by hesitating to evict bad tenants, and then blundering through the long eviction process ill-prepared.
Most bad tenants – and therefore most evictions – can be avoided through tenant screening tactics, but even contacting employers, landlords, and running tenant screening reports isn’t foolproof. To completely ensure you don’t lose thousands of dollars to rent defaults and evictions, you can literally insure against them. Check out Rent Rescue as a great example; they’re reasonably priced and worth the peace of mind.
“Be Prepared” is not just a motto of the Boy Scouts. You need to know how to evict defaulting, dirty, or property-damaging renters before the need arises, or when the time comes you’ll freeze and slow the lockout process even further.
It Starts with a Paper Trail
You might think it’s easier to pick up the phone and ask Tom Tenant where the rent is. Or to give verbal warning after warning to the inconsiderate noisy renter, or to Sneaky Pete who slipped his pet python into the property (say that five times fast).
Repeat after me: “Telephone calls leave no trail.”
Phone calls can be a polite addition to written notices, but by themselves they just create a case of he-said she-said. No judge wants to referee between two spatting parties without hard evidence to lean on.
So, how do you keep good records going into the eviction process?
1. Put everything in writing! If you are emailing, send it with a read receipt. If you text, screen shot it. Keep copies of all letters!
2. In addition to your ledger, keep copies of all payments. If paid by cash, provide a receipt and get a signature; hold on to all paid check copies; money orders and account automatic deposits.
3. If police or other authorities are called by neighbors, get a copy of the report. Make sure you write down the date, time and the officer’s name. Create your own incident report.
4. Keep hard copies in a file, along with digital copies on your computer. When you’re sent a digital file, print it. When you’re given printed paper, scan it. You never know when you’ll lose either your hard copies or your digital files.
5. Take pictures! Trash strewn all over the rental unit’s lawn? Take photos. Tenant left the apartment damaged? Take photos. Turn your date- and timestamp on before taking the photos, and consider taking a video of the damage. Most critically, take photos along with your Move-In/Move-Out Condition Statement, which should be signed by the renters at both move-in and move-out, and provide photos to the renter of each condition.
Ignorance Is Not Bliss; Know the Laws!
Benjamin Franklin said it best: “An investment in knowledge pays the best interest.”
Let’s face it, that property that you are renting out to others cost a pretty penny. Becoming knowledgeable of state, local and Federal regulations are a big part of your owner’s manual.
First, know that “self-help evictions” are a big no-no. A “self-help eviction” is when the landlord/owner takes measures into their own hands to remove a tenant who has not paid or violated the lease or law. It’s illegal in every state.
What are some “self-help eviction” measures to avoid?
- Do not change the locks before the eviction lockout date.
- Do not touch or remove any of the tenant’s possessions.
- Do not shut-off utilities (even if the tenant has not paid).
- Do not stop making repairs. Tenants routinely use this in court as a defense.
- Do not harass, curse at, or threaten a tenant, occupant or guest. Be careful using social media and posting anything derogatory about them, no matter how much of a deadbeat they’ve been.
Overview of the Eviction Process: Infographic
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Eviction Process Step 1: Written Notice
Every state has written notice requirements – specific written legal notices that must be sent to renters, usually by certified mail.
While a few states are looser, others are extremely precise and specific. Not sending the right notice at the right time only adds time and aggravation to this already stressful process.
Here are a few examples:
North Carolina: When a North Carolina tenant is behind on the rent, the landlord must give them a written notice demanding payment within ten days. If the tenant fails to pay, the landlord must then go to the local courthouse and file a Complaint in Summary Ejectment (more on that in Step 2: Filing).
Illinois: Illinois requires a five-day notice when the tenant fails to pay rent. Other wrong-doings and lease breaches require a different form, a ten-day notice. Then there are the major cities! Chicago imposes its own set of processes for eviction. Be sure that you always check your local notice requirements as well!
Proper notices in each state contain specific language. For instance, some are simple demands. An example is: “This is a formal demand that you owe me $XXXX.XX in back rent. You must pay this amount in full on or before XX/XX/XXXX or legal proceedings will be initiated.”
Some states permit language that tells the tenant to pay, or leave. This is often referred to as a “Notice to Pay or Quit” or a “Notice to Terminate”. It is these tiny little details that can often make or break an eviction case. Most district judges will hold you accountable to the letter of these minutiae.
How Do You Serve the Eviction Notice?
Again, without sounding like a broken record, different states (and some municipalities) have different protocols. Below find the various ways to deliver that notice to the offending tenant.
- First-class and/or certified mail. Some states allow regular mail, while others require certified mail. I always send one certified, return receipt required, even when not required. Having that little green signed card in court can go a long way.
- Post. This is when you tape the notice to an obvious place such as the front door. Tip: Mail it as well!
- Hand-deliver. Each state has their own ways to do this. With some, you can just hand it to whomever answers the door and run! And other states require a signature (tip: it’s always better to get it signed). There are rules as to who may receive the notice and their minimum age; delivering it to a toddler is never allowed.
- Process server. Few states require this, but it has its advantages. First, it’s hard proof that the eviction notice was delivered. It’s also less confrontational and dangerous than hand delivery by you, as irate tenants can be unpredictable. Still, it’s expensive, and an extra step to have to take.
Bear in mind that some states require a combination of these service options before filing in court for eviction.
Eviction Step 2: Filing
How many days did your state require in the eviction warning notice?
That’s how long you must wait before filing in court.
For instance, in Iowa, once your notice period expires, you go to your county court and file an Iowa Forcible Entry and Detainer or F.E.D. Alabama landlords also file the form in the County courthouse; it’s referred to as the Statement of Claim Eviction, Unlawful Detainer. In Michigan and Pennsylvania, these forms are filed at the district court level and termed Summons and Complaint for Eviction.
As each of them has different names, they also have distinctive information required as well as the methods to file them. Some municipalities have joined this millennium and allow online filing for the eviction process. Others remain stubbornly low tech, and require an in-person visit to the courthouse with paperwork and paper check in hand.
The nuances do not end there. Each court has a decree on what constitutes “proper waiting time”. That five-day grace period in your proper notice may mean “any” five days in a row in one state, and five business days in another state and a whole different counting interval somewhere else.
Rule of thumb: Contact the clerk of court where your property is located. Do this before you ever need it. Find out what constitutes a day in a notice period? How can a form be filed; in person or online? What is the service of notice requirement?
Eviction Step 3: The Hearing
The document is filed, your tenant receives notice from the court that they must appear for a hearing. Most states will assign a court date for all parties to appear and duke it out, presenting evidence and making a case before a judge.
However, some states such as Nevada require the tenant to contest the complaint first (usually via mail). If they do so within the time window, a court date is scheduled for all parties to appear. However, if the tenant fails to answer in the time allotted, the eviction order is automatically granted. There are a few states that have similar procedures.
“What do I bring to the eviction hearing?”
The lease agreement, if you have one is very important to bring along. Any notices, copies of checks, pictures, unpaid utility bills and your rental ledger should be in your case file. If you have made any phone calls, make sure you have the specific dates and times.
TIP: Always bring an extra copy of the lease agreement with you. Often the Judge does not have it. Make notes as to which section of the lease was violated. The more organized and the easier it is for the Judge to find the necessary information, the better it is for you.
“Do I need an attorney?”
You can’t expect us to answer that! While we would never tell anyone not to hire an attorney, our experience has been that landlords don’t need one for the eviction process. But if there is confusion, complications, worries, snags or you have never been in a court before; perhaps it is worth the money to hire an attorney. However, a cut-and-dry non-payment case is usually straightforward. And often the tenant doesn’t bother to show up.
Step 4: Eviction Lockout
Each state has their own procedure for formal eviction lockouts as well, surprise!
Many courts offer a period of appeal. (See how long this process is getting?) In Pennsylvania, the appeal time after a judge renders his decision is ten days. This means that either party may file an appeal to a higher court at any time within the ten-day period.
And remember, each court counts days differently!
Once the judge approves the eviction, and any appeal period has been exhausted, the procedure for a constable or sheriff perform a lock-out may begin. Important note: YOU may be the one required to schedule the eviction with the sheriff’s office! Be sure to ask the court.
Some states such as Colorado have a process for Writ of Restitution. This is a form that the landlord/owner will get from the courts, and then take to the sheriff’s office.
Once the sheriff assigns an eviction date, the landlord has to post or serve it on the tenant. Basically, it tells the tenant to get out or be locked out. That means everyone on the household must vacate and all personal items must be removed.
Eviction Step 5: Are We Done Yet?
Just when you think it’s safe to go back in the water (or prepare your property for the next renter), there are potential pitfalls.
- What if your tenant appeals? In some courts, in order for the tenant to do this, a specific portion or allotment of the rent “allegedly” owed must be paid into the court along with paperwork to initiate the appeal. In other courts, the tenant must simply pay rent, current. The appeal process can be lengthy and complicated. Therefore, at this point unless you have been there, done that; time to call your lawyer.
- Unfortunately, there exist professional tenants that can literally drown a landlord in litigation for months, or worse, years. Tenants in the midst of bankruptcy could hold you stagnant as well. Without sounding repetitive, get good, professional, legal counsel if this happens!
- Tenant is locked out, but all their stuff remains! In some absurd states, the landlord is required to store the property. For instance, in Nevada, the landlord not only must store the junk for 30 days but also even after the 30 days are up, must make sure and take all “reasonable” efforts to locate the owner of this abandoned stuff! And in Oregon, not only must you store the renter’s belongings, but you must also ensure that no damage is done to it.
Then you have a state like good ol’ Arkansas where if the deadbeat leaves personal effects behind, it is considered abandoned and well, you can just throw it away or do whatever you want with it.
Are There Any Alternatives to The Eviction Lockout Process?
Originally invented by banks, lenders came up with the idea to pay owners in foreclosure to leave. It made sense (cents?) as the foreclosure process could take upwards of a year to complete. In this time, the property is most likely not being repaired, may even be getting neglected and abused.
It inevitable that some landlords would follow suit. It might stick in your craw, but sometimes it’s the cheapest and fastest way to get your hard-earned property back. (It makes one wonder though, at a legal system so cumbersome that we have to reward people for breaking their contract just to get our own property back….)
Consider a simple non-pay eviction case in my suburb. I can generally go from notice to lock-out (provided there are no glitches) in about a month to forty-five days. But in larger cities, such as Philadelphia or Chicago? Triple that, just to get a court hearing! Much less an actual lockout date.
So, here you are with a tenant not paying rent. In my smaller town, it will cost you two months of no rent (plus court fees) to evict. Then money to clean out the abandoned trash, repair the property, and yes, even replace appliances, carpeting and the like. Perhaps some extra costs to store junk left behind. Then, to market you go. Hopefully, you find a good tenant quickly. All in all, you’re facing thousands of dollars in expenses.
Instead you try:
“I would like to propose that you move out in two weeks and I will pay you $500. I’ll meet you here to inspect the property, and if all looks good, I’ll give you the cash and we are done.”
Be sure and read your tenant and the situation before jumping to this solution. Many times, when a tenant gets a notice, they get scared and leave quietly on their own in the middle of the night or pay up. Other times, they’ll string you along and say they’ll leave voluntarily, and then… won’t.
Oz. of Prevention > Lb. of Cure
As much as we try and avoid the eviction hell, occasionally we all end up there. But through tenacious tenant screening, including credit, criminal, and eviction reports, you greatly reduce the probabilities. (Start with a free tenant background check through our landlord software.)
Go further and check the Facebook and social media pages. Contact employers, prior landlords. Walk through their current home.
To fully protect against rent defaults and evictions, buy rent default insurance through an insurer like Rent Rescue.
What have your eviction experiences been? Any tips to pass along to other landlords?