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.
Failing to Immediately Serve Tenant with a Three Day Notice to Pay Rent or Vacate The eviction process is slow and cumbersome. Every day that a tenant resides in your property without paying rent you are losing money. While the tenant is still liable for missed rent payments even after they have been evicted, the reality is that the tenant is likely broke, so you will not be able to collect what you are owed. Accordingly, it is imperative that a Three Day Notice to Pay Rent or Vacate is served on the tenant as soon as possible after a missed rent payment. Understand that from the day a Three Day Notice is served, you are looking at a best case scenario of 45 to 60 days until a Final Judgment of Eviction can be obtained and the Sheriff can return the property to your possession. Do not further prolong the process by waiting a week or more before serving a Three Day Notice. Remember, you can stop the eviction process anytime if the tenant pays their rent or a settlement is reached, but there is no way to speed up an eviction process that was not started when it should have been. Attempting to Evict a Tenant Yourself With the wealth of information available on the internet and evictions forms published by local municipalities, many capable and intelligent landlords and property managers attempt to perform their own evictions. This is a mistake. I cannot stress enough the importance of hiring an attorney to evict a tenant. Almost every nightmare eviction story that I have been involved with began with a landlord attempting to evict without counsel, or relying on a property manager or broker to file an eviction. The upfront cost of an attorney is minimal compared to the liability you face from a botched eviction action. An attorney will do it right, and get it done faster, saving you funds in loss rental income. Remember that if your eviction is dismissed, you will be liable for any attorney’s fees and costs incurred by the tenant. Don’t take the chance, get an attorney. Agreeing to Early Termination/Liquidated Damages Addendum in Lease An early termination/liquidated damages addendum provides that if the tenant breaks the lease before it expires, the tenant is liable for a fixed amount of rent, usually 2 months, but no more. This addendum is very common in Florida residential leases and it generally favors the tenant. Without the addendum, if a tenant breaks the lease early, the tenant is liable for rent for every month until the end of the lease, or until the landlord finds a new tenant. Because the tenant’s liability is not capped at 2 months’ rent, the landlord has a lot more leverage over the tenant, which is helpful for negotiating a favorable resolution of the dispute. If a tenant insists on an early termination addendum, it is okay to agree to it, as it is probably not worth losing a paying tenant over. However, if the tenant does not ask or insist on the addendum, you would be best advised to not include it. Failing to Send Security Deposit Claim Letter If you intend to make a claim against your tenant’s security deposit, you must send written notice to the tenant’s last know address within 30 days of the date the tenant vacates the property. A text message or email will not suffice, it must be a written letter sent via U.S. Certified Mail. If you fail to send the letter, or send a letter which is defective, then you are not authorized to retain any portion of the security deposit. At that point, if the tenant sues you for return of the deposit, you will lose, you will have to return the deposit, and you will likely be liable for the tenant’s attorney’s fees. If you fail to send the letter, you can still sue the tenant for rent owed, damages to the property, etc., but you will have to return the security deposit first. The requirements for making a claim against a tenant’s deposit are outlined in Chapter 83, Florida Statutes. If you are concerned about complying with the statute, or if you plan to make a large claim against a tenant, you should consult with an attorney before doing so. Ignoring Issues with the Condition of the Leased Property No property is perfect, and no landlord is expected to keep their property in perfect condition for a tenant. However, ignoring condition issues with the property can get you into a lot of trouble. Review your lease, the obligations you have to maintain and repair your property are set out in detail in most standard form leases. If the tenant makes reasonable complaints, address them quickly and properly. Keep records of everything to protect yourself in the event of litigation. If you receive a 7 Day Notice to Terminate the Lease, or the tenant withholds rent, contact an attorney immediately
New Jersey court bars subsequent claim by tenant In the matter of RAJI v. SAUCEDO, New Jersey Appellate Court held that claims made by the tenant in a lawsuit for money damages against the former landlord should have been included in the original landlord-tenant action consent judgment. The court used the legal doctrine of accord and satisfaction to bar the former tenant's claims. The doctrine of accord and satisfaction is a "mutual exchange of interest that fully discharges all claims, replacing them with the judgment's express terms". The Court held that when the parties entered into a consent judgment in landlord-tenant court the tenant should have included its claim for reimbursement for improvements made to the rented premises as a set-off against the landlord's claims for unpaid rent. The tenant's later civil action for damages for the cost of the improvements was therefore barred because the tenant could have raised it in the landlord-tenant action, but did not.
Althauser Rayan Abbarno, LLP property attorneys explained the Residential Landlord-Tenant Act and recently legislative changes to the Lewis County Chapter of the Washington Realtors. Remember, this is not specific legal advice because every case is fact specific. If you have a question about a property or landlord-tenant issues, contact Peter Abbarno with Althauser Rayan Abbarno in Olympia or Centralia at (360) 736-1301 or visit www.CentraliaLaw.com
Action for Non-Payment of Rent In many actions for non-payment of rent brought by landlords against tenants, charges such as late fees and legal fees can be added to the rent claimed due if those charges are designated as "additional rent" in the lease. The tenant would therefore have to pay those additional charges, in addition to the base rent, to have the complaint dismissed. Additional charges added to base rent cannot exceed the maximum permissible rent under rent control However, in the recent New Jersey Superior Court opinion in the case of Opex Realty Management v. Taylor, the Court held that "In properties subject to rent control, late and legal fees designated as 'additional rent' cannot form the basis for a judgment of possession unless expressly authorized by the rent control ordinance." Therefore if the monthly rent claimed due, together with any fees or other charges designated as "additional rent" exceed the maximum monthly rent permitted by the rent control ordinance, the landlord cannot collect those fees as additional rent in an action for eviction for non-payment of rent.
Occupancy Limits Under the Logan Land Development Code, houses in certain zoning districts in Logan are only allowed to accommodate up to three unrelated adults. The Logan City ordinance was put in place to reduce impact from a property to the neighborhood, including parking and noise. Any person can submit a complaint for potential zoning violations. A landlord may receive a notice from the city that there are too many people in the house in violation of the municipal code. After receiving a notice from the city, a landlord may have 10 days to reduce the number of people in the house to three unrelated adults. This can result in a hardship to tenants. Landlords are also required to give notice to the tenant of the occupancy limits for the zone in which the property is located in the Logan Land Development Code. The notice can be in either the written lease or on a zoning occupancy disclosure form. Tenants should demand notice of the occupancy limits from the landlord before signing the lease. Overnight Guests Many lease agreements include a clause restricting overnight guests. Allowing a friend to crash on a couch for an extended period of time could violate the lease agreement and potentially result in eviction and a criminal trespass action. Utah passed a law in 2017, Utah Code section 76-6-206.4, to help homeowners and apartment renters get rid of an invitee (“guest”) who won’t go when asked to leave. The law allows the police to arrest a “long-term guest” as a criminal trespasser. The guest is evicted without a court order and can be convicted of a class B misdemeanor subject to six months in jail. A tenant who “aids and abets” by inviting a guest can also be found guilty as an accessory. With popular online hosting platforms and hospitality services such as Airbnb, CoachSurfing, and VRBO and the common situation of university students hosting overnight guests, landlords can restrict overnight guests with a clause in the lease agreement. Be careful with overnight guests and read the language in the lease. Business Licenses Many students have an entrepreneurial spirit, but these aspiring business owners may unknowingly be violating lease agreements, along with state and local laws. Mark Zuckerberg famously developed the Facebook website in his dorm room while a student at Harvard University. But a lease agreement may include a “Use of Premises” clause that prohibits running a business. In addition, Logan City and other cities in Cache County require a business license for any “business.” The definition of “business” generally includes any enterprise carried on for the purpose of gain or economic profit, including the sale of tangible personal property at retail or wholesale, the manufacture of goods, and the rendering of services to others. Title 5 in the Logan City Code has a very broad definition for “engaging in a business.” The Utah Legislature passed a law in 2017 stating that a city may not charge a license fee for a home-based business (See Utah Code section 10-1-203), but the city can still require a business license for any business venture. Operating a business in Logan City without a business license is a Class B misdemeanor subject to six months in jail. A tenant can face both eviction by the landlord and conviction in a criminal case for running an unlicensed business. A landlord without a business license is also in violation of the Logan City Code. Logan City considers it unlawful for any person to own a rental dwelling within the city without a business license. Repairs and Defects If the landlord does not fix something that needs to be repaired, the tenant has some options under the Utah Fit Premises Act. Under this law, a landlord must provide safe and livable housing. A faulty toilet, a broken furnace, no hot water, a broken staircase, bare electric wires, and dangerous holes in the floor are all examples of things a landlord must fix. The lease might include other items the landlord is responsible for fixing, such as appliances. The tenant should first notify the landlord of anything that needs to be repaired. If the landlord refuses to fix a major problem, the tenant can send a “Notice of Deficient Conditions” to the landlord. The tenant then has two options with the Notice of Deficient Conditions. The tenant can either: (1) withhold rent until the problem is fixed; or (2) pay an outside professional to repair and then deduct the expense from the rent. The tenant also has other options such as calling the local health department or building inspector, suing in Small Claims Court, or terminating the tenancy. But be careful with certain self-help actions, such as withholding rent. Tenants can face eviction if proper steps are not taken. Security Deposits Along with repairs, security deposits are often a point of contention between landlords and tenants. Utah state law allows landlords to charge a nonrefundable deposit, but the landlord must clearly state in writing what part of the tenant’s security deposit is nonrefundable. After the tenant moves out, Utah landlords have 30 days to return the tenant’s security deposit. Withholding the security deposit of the tenant for no reason can attract penalties. The renter may recover $100 in penalties plus court costs as well as the full amount of the security deposit if the landlord wrongfully withholds the security deposit, fails to provide an itemized list of the deductions, or fails to return the security deposit within 30 days. Assignments and Subletting Many lease agreements also have a provision against assignments and subletting. An “assignment” of a lease is the transfer of the tenant’s entire interest in the property. A “sublease” can apply to a physical part of the property, or for a period of time within the existing lease. For example, a “head tenant” may wish to rent out a part of the property such as a room or a basement to another person to the “sub-tenant.” The tenant can also rent out the entire property for a specific period of time, such as the summer months during a one-year lease. The tenant should receive written consent of the landlord before assigning or subletting the lease. Disputes and Legal Actions Often, disputes between landlords and tenants can be resolved faster and at a lower cost through settlement negotiation and mediation rather than going to court. In some circumstances, it may be necessary for the landlord or the tenant to bring a legal action in court. Be aware than many lease agreements include a clause that allows the landlord to recover attorney fees to enforce lease violations, including eviction actions. Parties can represent themselves or hire a private attorney. The Utah Online Court Assistance Program (OCAP) on the Utah court website provides assistance in preparing court documents if you do not have a lawyer. If a tenant violates the lease, the court can issue an “Order of Restitution” or an order of eviction giving the tenant notice to move out within a certain number of days. If needed, consider hiring a private lawyer to assert your rights. Most lawyers will provide a free 30-minute initial consultation. Some lawyers also provide mediation services to help resolve disputes.
“I needed advice with a non-standard real estate property development situation. Attorney Weaver offered clear and concise advice on how to move forward with the business deal and what potential legal documents may be required.”
— Landlord or tenant law client, March 2016
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