There
comes a time when every landlord finds himself / herself in a difficult
position of having his rental property occupied by a tenant who is not paying
rent, or is making a nuisance of himself and causing problems for other
tenants, or is causing immense damage to the rental unit, or his / her conduct
makes it impossible to continue with a landlord / tenant relationship. Though,
state laws governing eviction vary significantly, the following are a few tips
to help landlords finding themselves in the unpleasantly messy situation of
evicting a tenant.
As
the owner of a significant number of residential units, it will be to your
benefit to engage a lawyer to advice you on eviction issues, as well as, for
handling legal actions. An established relationship with a lawyer is useful as
he will carry out various legal tasks charging a flat fee only, whereas, hiring
a lawyer on a case to case basis can result in much higher legal fees.
Evicting a Tenant for Non-payment of Rent
The
eviction process involves serving a formal notice, informing the tenant the
rent is overdue, and he / she faces possible eviction, if they do not pay on
time. If a landlord is not knowledgeable about the legal terms of a notice,
there are pre-printed forms which fulfil all legal requirements for a proper
notice. In case, the rent arrearage has not been paid after the legally defined
period i.e. usually, about a week, a landlord can begin eviction proceedings on
the basis of non-payment of rent.
Bear
in mind, if the tenant makes a partial payment during the eviction process, in
most jurisdictions the acceptance of any payment of rent, even a small amount,
can result in dismissal of the eviction lawsuit for non-payment.
Lease Violation
When
a tenant does not comply with the terms of the lease he / she signed, a
landlord must provide a written warning, referring to the lease clause being
violated, and allow him / her time to remedy the problem. This is so the tenant
cannot later claim ignorance that he / she did not know, they were in violation
of the lease, or they received no notice of the violation. The judge will be in
favor of the landlord if it is established the tenant ignored a prior notice
and the deadline.
Health and Safety Issues
Certain
tenants may pose a health or safety problem for other tenants or for the
property, in general. In many jurisdictions, it is permissible for the landlord
to evict tenants whose conduct is hazardous to the health of other tenants or
can damage the property. First of all, a landlord should serve the tenant with
a fixed period of time notice (a week) to remedy or repair the problem, or else
move out. If no corrective action is taken, a landlord can proceed with the eviction
proceedings.
Even
if a tenant resolves the issue, but you still want him / her out, serve them a
notice on eviction on health or safety grounds, as well as, a notice stating
their tenancy is being terminated.
Bankruptcy
In
the event a tenant files for bankruptcy, an automatic stay prevents a landlord
from continuing with the eviction proceedings until the bankruptcy is resolved,
or the bankruptcy court permits eviction proceedings to continue by lifting the
stay. This may require a motion to be brought before the bankruptcy court,
asking for the stay to be lifted.
Tenant Counter-Claims
When
a landlord begins eviction proceedings, some tenant may bring counter-claims
against the landlord, such as, inadequate maintenance of property or violation
of the lease, and may ask the court to stop eviction proceedings or else for a
substantial rent decrease in arrearage owed.
This
is why it is good practice to keep written records of any complaints received
from tenants about the rental unit or common areas, and steps taken by the
landlord to resolve them, as also with warnings of tenant misconduct. Remember
a landlord’s can preclude a tenant’s claim that despite repeatedly complaining
about a problem with their unit, the landlord failed to respond with positive action,
as long as the landlord has kept records of all interaction with the tenant and
of action taken.
Trials
Before
going to court, a landlord must ensure all his documentation in relation to the
case is in order and there is nothing missing. Unless a landlord is conversant
with the rental laws of his state and has had enough experience in eviction
cases, it is also advisable to engage a lawyer, well versed in property law of
the state a landlord’s rental property resides in.
The
above should provide you with enough knowledge of what is required for a
successful eviction.
For more visit www.kenyan-real-estate.com
No comments:
Post a Comment