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Landlord responsibilities

Landlord responsibilities include keeping the property up to local and federal codes, general maintenance, and making repairs.

Cody Malloy McCaughan | Oct 9, 2019

Guide To The Perfect Eviction

Hire An Attorney Do not try to evict a tenant without an attorney. Period. It usually does not go well, even when attempted by experienced property managers. You might get lucky and it works out, but more often than not, you will get yourself into trouble, at which point you will have to hire an attorney anyways. The attorney will charge you 2-3 times what the eviction would have cost upfront, and the tenant will be in the property a lot longer without paying rent, which costs you money. Do not make this mistake. Hiring an attorney will give you peace of mind, and the upfront costs are recouped by the increased speed of the eviction, higher likelihood of a favorable result, and much lower likelihood of the eviction getting derailed completely. Three Day Notice The first step of the eviction process is to draft and serve the Three Day Notice. The Notice essentially gives the tenant three days to pay rent or vacate the property, and it is required before an eviction action can be filed. Your attorney should handle drafting and serving the Three Day Notice, as there are a multitude of minor mistakes that will render a Notice completely defective. If you want to draft and serve your own Three Day Notice, there is no harm, but understand that if you ultimately need to evict the tenant your attorney will likely have to draft and serve a second Notice to cure defects in the original. Three Day Notices are usually served by posting on the property, and it is advisable to use a licensed process server to ensure service if performed properly. Filing the Eviction and Defaulting the Tenant After waiting three days, excluding weekends and holidays, if the tenant has not vacated the property or paid rent, an eviction action should be filed. The tenant can be served by posting the summons and eviction complaint on the property, or by personal service. Personal service is preferred as there is less chance of the tenant exploiting defects in service to delay the eviction and, often more importantly, because you cannot obtain a money judgment against the tenant without personal service. Within five days of being served, the tenant has to both respond to the complaint and deposit the rent owed into the court registry. This is crucial because if the tenant fails to do either his/her defenses are waived, and the landlord’s attorney can proceed with applying to the court for a default and Final Judgment of Eviction. The tenant can also contest the amount of rent due, in which case the court will hold a hearing, usually within a month, to determine how much rent the tenant must deposit into the court registry. After this hearing the tenant generally must deposit the rent within one day, or face a default judgment. Working Out A Resolution At this point, the eviction generally follows one of two paths depending on if the tenant has been defaulted. However, whether you have been able to obtain a default against the tenant or not, an effort should be made at resolution. If the tenant has been defaulted, you can use this as leverage to reach an agreement where the tenant vacates immediately, pays past due rent, or agrees to waive certain claims that may exists against the landlord. If the tenant has not been defaulted an even greater effort should be made at resolving the dispute, as the lawsuit can go on for many months as long as the tenant keeps paying rent into the court every month. If the parties end up litigating the case it will cost tens of thousands in attorney’s fees, hence the importance of making a strong effort at settlement in this early stage. If the parties cannot reach a resolution on their own, the judge will often order mediation in the hopes that the case can be resolved. Work with your attorney and be flexible in order to find a way to resolve your case. Litigating the dispute and going to trial only make sense in very rare circumstances, usually in commercial lease cases, where the dollar amount at stake is in the tens of thousands or hundreds of thousands. Getting the Final Judgment of Eviction and Executing the Writ of Possession Assuming the tenant has been defaulted, the landlord’s attorney can now apply to the court for a Final Judgment of Eviction, submit a Writ of Possession to the Clerk of the Court for issuance, and then arrange for the Sheriff to execute the Writ. The Sheriff will setup a day to meet the landlord at the Property, remove the tenant and his/her belongings, and place the landlord back in possession. It is a good idea to have a locksmith scheduled to immediately change the locks on this day as well. If the tenant has not been defaulted, you should have reached a settlement at this point which requires the tenant to either resume paying rent or vacate the property by a certain date. The settlement should always provide that if the tenant fails to vacate on time, the landlord is immediately entitled to a Final Judgment of Eviction, plus attorney’s fees. It is important to note that the only way for a landlord to retake possession of a property is if the tenant vacates on his/her own, or the Sheriff executes a Writ of Possession. Do not ever attempt to take back possession by any other means, including prematurely changing the locks or cutting off the tenant’s water or electricity. These “self-help” remedies are illegal and can result in the tenant suing you for punitive damages and attorney’s fees, both of which they are entitled to by Florida law. Recovering Past Due Rent, Attorney's Fees, and Costs Now that possession of the property has been returned to the landlord, the decision has to be made as to whether to pursue past due rent, attorney’s fees, costs, and other charges due under the lease. This is perhaps the most misunderstood aspect of having to evict a tenant. The reality is that in most situations it does not make financial sense pursue recovery of money from the tenant. To begin, if the tenant was evicted for nonpayment of rent, it is highly unlikely that they have any money or assets from which to collect. Even assuming the tenant has assets from which to collect, it can be a long and expense path to obtaining a money judgment against the tenant. While the law somewhat favors landlord’s in the eviction process, once possession of the property is returned, any claims for unpaid rent, damages, or attorney’s fees are the same as in any other lawsuit, meaning that the plaintiff, which is the landlord, has the burden of proof for every single dollar which they claim to be owed. The attorney’s fees associated with meeting this burden of proof usually makes this course of action cost prohibitive unless there is an exceptionally large sum of money due to the landlord. Most experienced landlords, particularly in the residential context, just keep the tenant’s deposit, cut their losses, and move on. This is usually the right decision, but you will need to consult with your attorney on the specifics of your case.

Emilie M Fairbanks | Apr 19, 2019

Top Things You Must Know About Being a DC Landlord

Once a landlord, always a landlord. With some notable exceptions that I will discuss in more depth in later posts, if you rent someone an apartment in DC and they comply with the lease, and pay the rent, that lease is good until they move or die, no matter what it says about the end date. This is a "perpetual tenancy" and it is the right of residential tenants that gets many landlords in trouble. You may not want to be a landlord forever. You may have a tenant who drives you crazy. In DC getting them out is not as easy as waiting until the lease ends. You must give a "legally sufficient" thirty day notice to cure or quit. This is for lease violations only. For nonpayment you may or may not have to give notice, it depends on your lease. It must be specific about what the tenant did to violate the lease and it must tell them how to cure the violation. If they cure you cannot file suit. Again, notable exceptions, like the Federal Drug Related Evictions Act exist, but they are rare. The notice to cure or quit must be in English and Spanish. Period. Oh your tenant doesn’t speak Spanish? Doesn’t matter. Tenants can demand a jury trial no matter how little they owe or what the lease violation is. Your case will be certified to the Civil Division, which extends your case. Perhaps up to a year. During this time, the lease violation may very well continue and in nonpayment of rent cases you won't be getting any rent, some, hopefully all of the monthly rent going forward from the first court date, will be paid into the court escrow. Yes it’s a delay tactic. Tenant petitions can also hold up your case. Tenants can file tenant petitions with the DCRA and request a "Drayton Stay" in your landlord/tenant case until the agency decides their tenant petition, which can take years. If they filed certain types of petitions, they are legally entitled to the stay and you could be in limbo for a long time. Tenants can counterclaim. In nonpayment cases, the tenant can counterclaim for three years of back rent if they claim the conditions of the unit violated the DC Housing Code. It is possible to sue a tenant for nonpayment of rent and end up owing them money. You need a license to be a landlord. But you can become a landlord just by accepting rent. Confused? Just because you are an illegal landlord doesn’t mean your tenants have to move. The minute you take rent, you are a landlord. They have the rights of tenants. But you can’t fully enforce a lease, increase the rent, or avoid fines without having a license and rent control registration or exemption.

William Lane Hubbard | Jan 28, 2019

Colorado Warranty of Habitabilty

Landlord Tenant Issues-Habitability The Colorado Warranty of Habitability Statute, which says that a landlord must keep the property in a condition that is fit for human habitation. Sec.38-12-505(g), Colorado Revised Statutes, specifically says that the landlord breaches the warranty of habitability if there is not an appropriate response to the infestation of rodents or vermin throughout a residential premises. In order to claim a breach of the warranty you must first give the landlord written notice of the uninhabitable condition and allow a reasonable amount of time to cure the problem. Be sure to keep a copy of your written notice. You may need it if it goes to Court. You may have already given a proper written notice, but it must be given. If the landlord fails to repair in a reasonable time after receiving written notice, then you can exercise your rights under the warranty statute, which can include withholding rent, giving notice that you are terminating the lease, due to the failure to cure the uninhabitable condition and giving a moveout date of not more than 30 days (this notice must also give to the landlord one final chance to cure the default within 5 business days) etc... the landlord may owe for moving expenses, rebate of rent and other losses you incur due to the breach. You should probably get some legal advice on how to exercise your rights when there is a breach of the warranty. Your landlord may claim that there has been a response to your requests for extermination, but he really has not, because his efforts have failed. Also, you may be able to claim a right to terminate the lease just based on the terms of the lease itself. The landlord may have breached the lease by failing to exterminate. Look closely at the terms of your lease. You can find all Colorado statutes at https://codes.findlaw.com/co/ This was originally written by William F. Burns, Attorney at Law. Security Deposit Issues As for your security deposit: Pursuant to Colorado Revised Statute Section 38-12-103(1), Landlord generally has a month after the later of the end of the lease or your moving out/surrendering the premises (though your lease could give landlord up to 60 days) to return your security deposit along with (at the same time; not later) a detailed written explanation of any amounts kept by landlord. If the landlord does not return your security deposit within the required timeframe, landlord loses all right to keep any of it. If the landlord fails to provide the detailed explanation at the time landlord returns a portion of the security deposit, landlord loses all right to keep any of it (38-12-103(2)). Further, tenant may be entitled under Section 38-12-103(3) to triple damages (plus attorney fees and court costs) if a landlord wrongfully withholds any portion of tenant's security deposit (but tenant does need to give landlord a written notice at least 7 days before filing suit against landlord). None of these rights are waiveble, regardless of what your lease says (38-12-103(7)). And landlord cannot charge reasonable wear and tear against your security deposit. This was originally written by Ashley Dean Powell, Attorney at Law. You can find all Colorado statutes at https://codes.findlaw.com/co/