TEN SURE FIRE EVICTION KILLERS

This article is one of our most 'frequently referred to' articles on our site. 
We field questions (almost daily) on this topic, so this is a valuable resource!

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Here are ten preventable errors which can kill your eviction, some before it even starts. Avoid these mistakes to ensure you can enforce your decision to remove a problem tenant. We have materials on this site which will assist you in accomplishing this and will be adding more.

Improperly delivering the eviction notice.

With rare exceptions, the eviction notice is the foundation of your right to remove the tenant from the rental property. The eviction process is special. It lives on a fast track from start to finish. Where a typical civil lawsuit requires a year or more to resolve, an eviction, even if contested, is usually finished within a month or two. The price exacted by the judicial and legislative systems for this unusual speed is that the tenant's rights be fully respected. This includes a guarantee that the notice, which terminates the tenant's valuable rights, be delivered in a way most likely to convey actual knowledge of the proceedings against him. If you serve your own notice, you should insure that the contents are legally sufficient and that you properly deliver it. If you need help, check our site, as we have information about this for many states. Do not overlook engaging a service to prepare and serve the notice for you, they are inexpensive and make their living by doing it right.

Improperly delivering a rent increase notice.

The vast majority, perhaps 90%, of evictions occur because the tenant has not paid the rent to which the landlord is legally entitled. In such cases, the rent which the tenant actually owes must be calculated, and the tenant then given an opportunity to pay it within a limited time. This is usually by way of a pay or quit notice. Failure to do this kills your eviction. Frequently, the rent has been increased from time to time during the tenant's stay at the property. Many landlords rely on word of mouth to convey notice of increased rent: "Hey, Charlie, starting next month your rent goes up to $525." This is insufficient, unless other events subsequently occur. Do not rely upon other events to subsequently occur. Prepare and properly deliver rent increase notices according to your State's law so you can accurately calculate what is due.

Failing to maintain the property.

Because rent is the issue that most frequently causes the eviction, it makes sense to avoid anything which might permit the tenant to raise a successful defense to an eviction for rent. The most frequently successful defense is the breach of the implied warranty of habitability (failure to maintain the premises). Get your maintenance house in order, and keep good maintenance records.

Accepting partial rent payments after the eviction starts.

Once you have started the eviction process, and that starts when the eviction notice is served, you must be prepared for the ultimate necessity of convincing someone who knows nothing about the case (the judge) that you are entitled to possession of the property and that he must kick a registered voter into the street. There are more voting tenants than voting landlords. Complications make things murky and partial rent payments complicate things. While some states have laws stating partial rent payments do not necessarily stop the eviction, most states do not. A contention by the tenant that these partial payments were really part of a repayment plan and that you were supposed to stop the eviction will be quite seductive to the judge who decides your case. Unless otherwise advised by counsel, do not accept partial payments. You knew that you were going to take a loss when you decided to evict and decided the loss was worth it. Bite the bullet and liquidate the problem. It is nearly always cheaper than having to start all over again.

Acting as your own lawyer.

Engage a lawyer. Not just any lawyer, but one who specializes in landlord/tenant law. If he is a specialist, he will be equipped to handle your case without waste of time. The rule of thumb is that no paper should sit in the lawyer's office overnight without action. Because he is specialized, your lawyer can also handle the matter inexpensively. Typically, an uncontested eviction should cost no more than $200 to $250 plus out of pocket expenses. Most contested ones, perhaps twice that. In extraordinary cases, or in extraordinary jurisdictions, it may be more, but your lawyer will be able to give you a rough estimate and explain the reason for the extra charge. What you are buying is his experience. You, if you are unlucky, may have had two or three cases to learn on, he has had thousands. There is nothing that can happen that he has not seen or at least heard of before. As a bonus, you will be freed of hours of work and frustrating blundering contact with the court system. This is what you pay the lawyer for.

Not telling your lawyer the whole truth.

If you have decided to engage an attorney, be sure you tell him everything which might pertain to the case at the first interview. Typically, you will be asked to fill out an interview sheet, which will give the lawyer an idea of what the case is about. If your tenant was without heat for two weeks last month, or has been involved in tenant organizing, or has called the health department, disclose this in full. While it is true that most lawyers will have to charge a premium if this type of problem exists, the reason they charge is because it is a bomb that needs to be defused. This is always cheaper than letting the bomb go off in your face.

Not keeping good records.

In any eviction trial, the judge will be confronted with two versions of the facts, the landlord's facts and the tenant's facts. He must then decide what actually happened based on these two versions. These become the official facts, regardless of the truth. Because the judge has no idea who is telling the truth, there is no guarantee that he will believe you. In any case like this the party with the better records wins. Keep a notebook and make notes of your conversations with your tenants, retain all correspondence, keep good maintenance and rent receipt records, and an understandable record of all charges. Dates and times are important. Keep these in a condition that permits easy retrieval of pertinent information. If you do this consistently, for good tenants and bad, whether contemplating evictions or not, not only will you appear more confident and reliable when you tell your story to the judge, but you will be able to back everything up with solid records made at the time of the events. Then, you win.

Making special deals for rent payments

It is usually a good idea to make a settlement with the tenant if you can do this without compromising your major objectives in starting the eviction. It is never a good idea to enter into convoluted open ended agreements which almost guarantee that you will be evicting the tenant again in two months. Decide what is at stake before you start. All evictions boil down to two things: possession of the property and money. Possession: when will the tenant vacate, and what guarantee will the deal give you that he will actually be removed if he does not vacate as agreed. You would not have started the eviction if you did not want possession, if you give in now, ask yourself what has changed since that decision was made. Money: how much will the judgment be and when will it be paid. You can afford to be much more compromising on this since you will probably never collect it all anyway. If you feel compelled to enter into complicated arrangements whereby the tenant pays and stays, or offers you the pink slip to his trailer as security for the rent, etc., do so under the supervision of an experienced eviction attorney.

Including charges other than rent in the pay or vacate notice.

In many cases this simply not permitted, and so is fatal. In some states (such as California) some charges arising out of a written contract can be included in the amount due. Even in these states, the landlord is well advised to leave them out. These charges are usually minimal compared to the rent, which is the real issue. It may be that the tenant owes a couple of late charges and a utility bill in addition to two months of rent, but compare the two. The rent may amount to $1500 or more while the late charges and utilities are only $100. Including them will open broad vistas of possible defenses to your entire eviction action. If one of the late charges, say, was improper, then you will lose even if the judge is convinced the tenant actually owes the $1500 in rent. There is no sound reason to hand such a defense to the tenant. Demand the rent only. If you really want the utilities, go to small claims court or deduct them from the security deposit when the tenant is out.

Letting your ego get in the way of things

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Develop the attitude that you are dealing in dollars and cents. It is impossible for you not to develop personal feelings about the tenant, good or bad. Suppress them. Having started the eviction, your ego will urge you to win at all costs. Ignore it. At each step, your sole calculation should be whether it will it cost more or less in the long run to fight this out or not. Notice, we did not suggest that you should make a decision on how much the eviction might cost. The issue is how much the tenant’s removal will cost you, which is a very different thing. If the eviction is expensive, but following through will cost you less that not doing so, then go ahead. The opposite is also true. This works best if you are represented by an experienced attorney. Since the lawyer's emotions are not involved, he can make objective assessments of such things.

No one wants to evict, but if you have to, and you have avoided these ten pitfalls, you will find your evictions going much more smoothly.

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