Written by attorney Thomas R. Elliott Jr.

Landlords beware: How not to evict a tenant!

When a tenant doesn’t pay the rent, should the landlord change the locks, cut off utilities such as heat, electric and water, or remove the tenant’s property and sell it to pay the rent? Our answer is always "no" Our advice is to use only legal proceedings to collect rent and evict a tenant. A landlord should not change locks, cut off utilities, or remove property. This is referred to as “self-help." Until fairly recently, landlords often used “self-help" to get rid of defaulting tenants quickly and cheaply. Typically, leases provide that in the event a tenant fails to pay rent, the landlord has both of the following remedies: (a) at the option of the landlord, the lease would terminate and the landlord could evict the tenant; and (b) the landlord could seize (distrain) the personal property of the tenant and sell it to pay the rent. Even if these remedies are in a lease, they should not be exercised. A landlord may reason that “this is my property and if I want to get rid of a tenant because he hasn’t paid rent to me for months, that’s my right." The landlord is correct only if he uses legal process. The landlord is not correct if he uses self-help. The landlord should file a landlord-tenant complaint (typically in “small claims" court before a district judge) for the unpaid rent and, if successful, get an “order for possession" from the court. This order becomes the basis for a sheriff, constable, or other law enforcement officer to evict your tenant. Even if a landlord has obtained an order for possession, he should not evict the tenant on his own. In fact, if the landlord tries to evict a tenant on his own and without a court order, he violates numerous tenant rights. Under some circumstances, the landlord may actually be committing a crime. The violations may require the landlord not only to pay the tenant his actual damages, but three times that amount. The landlord may be ordered to pay the tenant “punitive damages": an amount which a judge or jury decides is necessary to punish the landlord so that he never uses self-help again. The landlord may also be required to pay the tenant’s legal fees. Attorneys have considerable incentives to bring these lawsuits against landlords.

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