12 Eviction Mistakes That Can Sink You
Time is money when it comes to evictions, and mistakes can cost a landlord both.
These common misconceptions not only slow down your eviction, they can cost you in court:
1. Thinking Evictions Are All The Same
States can set their own rules –and they do. So do municipalities, and individual courts. If you are renting under any subsidy programs, this also affects your rights as a landlord. This disparity of rules affects everything from notice requirements to disposing of property. Not knowing the rules for each particular situation can cause delays, even out-of-pocket losses. Individual legal advice is your best defense.
2. Believing You Can Always Evict a Tenant
Once you surrender the right of possession to a tenant, you may have to fight to get it back. The courts may only recognize certain reasons for eviction. Typical reasons include unpaid rent, a material breach of the lease, some nuisance or illegal behavior, or termination of a month-to-month rental with proper notice. Your eviction will have to fall within the prescribed categories of the law in your area, and you should seek legal advice to determine if you can rightfully bring an eviction in your situation.
3. I’ll Be Able to Expedite My Case
While you have every right to expect your eviction attorney to pursue your case with diligence, evictions are up due to foreclosures, and lines are forming in the courthouses and at the sheriffs’ offices. Perhaps this is your only eviction pending, or maybe your first ever. But it is certainly not theirs. You are in it for the long-haul, which could mean a couple months.
4. I’d Never Pay a Tenant to Move Out
Cash for Keys settlements, like the one outlined in last week’s feature, aren’t palatable to some landlords on principle. But considering the time span of the ‘average’ eviction (check with your lawyer for a timeframe)along with the additional costs of a sheriff’s officer, a moving company, storage or possible sale of tenant’s property, cleaning, and repairing any ‘hard-feelings’ damages, it may make sense from a financial prospective. If you can compromise with your nightmare tenant for a quicker move-out time, and a cleaner unit, you save hardship.
Click here to see How to Evict Tenants Without Property Damage.
5. What’s Not in My Lease Won’t Matter Now
Not providing clear language regarding key elements in your lease can catch up with you during your eviction. Examples may include having no provision defining when your tenant is in default in rent payments, adding in late fees that can be construed as illegal, or not restricting the behavior you are trying to evict over. Some provisions that are ‘standard’ in packaged leases may be illegal in your situation. Have an experienced attorney in your area review your lease agreements.
Click here to see Are Late Fees Illegal?
6. Not Understanding What an Eviction Can Get You
An eviction order is for possession of the property. This allows you to get the tenant out. To claim damages for unpaid rent, property damage and the like may require further legal action to obtain a money judgment. In some cases, that can require a separate court case. Once you obtain a money judgment, you will still need to take steps to collect it.
Click here for our archive of features on Maximizing Your Tenant Debt Recovery.
7. Thinking the Eviction is a Slam-Dunk
You actually have to prove your case with evidence. Not all eviction laws, and not all judges are landlord-friendly. Your lease has to hold up to judicial scrutiny. If you are evicting for a minimal infraction, or you don’t have documentary proof, you may not get the relief you are seeking.
8. Behavior That Gives the Tenant a Defense
Trying to drive the tenant away by shutting off utilities, abusing your right of access, or changing locks can net you a lawsuit. Many evictions are contested. Any behavior that leads to a claim of uninhabitability may be fair game to fight the order for possession, or to reduce damages owed by the tenant. Remember the Bed Bugs case? Also, accepting partial payment can complicate your case.
9. Not Suing All the Tenants on the Lease
If another tenant has a claim for possession, include them in the initial eviction, or this can cause delays as you try to make up for it later.
10. Not Disposing of Tenants’ Property Correctly
Only a few states allow you to set items on the curbside. You need to follow the law in your area– follow the notice requirements. There may be a requirement to store property. You might have to auction it and apply the proceeds to the security deposit or judgment. It’s a good idea to create an inventory and take pictures.
11. I’m Entitled to Take the Security Deposit
Maybe that’s the case, but you still need to prepare a proper accounting, deduct only allowable items, and follow any notice requirements regarding security deposits in your area.
12. Not Properly Screening the Next Tenant
The eviction process makes us more prudent landlords. Follow the appropriate screening process for the next tenant, including references from the current and previous landlords. Click here for our extensive archive of Tenant Screening Tips.
Copyright 2008 American Apartment Owners Association
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