PART FOURUPROOTING TENANTS
There are some plantings which fail to bloom as expected. Like weeds, they must be uprooted and discarded. Occasionally there are tenants who must be handled in the same way.
EVICTING THE TENANT
If you choose your tenants with care, and read "Asking Tenant to Conform," the possibility of having to evict someone will be rare. However, if a tenant refuses to conform or move after you have notified or served them a notice where required, then you must start an eviction immediately. Waiting can only decrease your profitability.
Keep records. From the first day you realize you may have a bad apple living on your property, keep copies of any notes, letters, or notices ever handed, sent, or tacked to the tenant's door. If you ever talk to the tenants and ask for their cooperation, keep a record of the day and even the time. Before you start an eviction, in most cases, you will have tried your "conform" procedures; consequently, you will have a copy of at least one letter or note notifying the tenant his or her actions are unacceptable. If you must ever use the courts, these seemingly trivial records are worth their weight in gold. They support your case. Furthermore, there isn't anything a judge, commissioner or justice of the peace likes better than a landlord who has tried to resolve the problem before taking up the court's valuable time. (A judge is normally elected by the people. A commissioner or justice of the peace, etc. is someone who is normally appointed by the court.)
Although covered earlier, it should be pointed out that before an eviction can begin for any reason, a notice must be given to the tenant in most states. (If your state laws allow, the notice requirement should be waived to avoid losing valuable time.) Where required, the notice must be served in the prescribed manner or the notice will be considered void. The process may seem complicated, but in fact it is very simple.
Many landlords and some attorneys confuse these preliminary notices with a court summons which must be delivered in person by a third party. The "notice" is just a preliminary most states require to warn the tenants an eviction will commence if they do not reach an agreement with the landlord. No attorney or third party is needed, you can deliver the notice yourself. However, it must be delivered according to the laws of your state or you will have to repeat the process and lose valuable time. All states give the landlord different options for delivering the notices since they are aware the tenant may try to avoid the landlord.
The first, and the most popular, is handing the notice directly to the tenant. Second is sending the notice by registered mail. Many states are aware a tenant may not accept the letter so certified mail (proof of delivery is supplied by the post office) may be allowed. There is one more alternative that is legal in all but a few states, and like registered or certified mail, it spares one the trouble of having to confront the tenant. It is also the one we normally use. Once we feel or become aware tenants are not going to pay their rent, or we want them out for another reason, we place one notice on their door, but we also send one through the regular mail. Although some states require both, a number of states require only one or the other. We nevertheless do both. A growing number of tenants are claiming they never received the single notice. By delivering one and mailing the other, the court will seldom (if ever) believe tenants who claim they never received a notice.
These notices can be purchased at any office supply store and normally have your state's requirements for serving them printed on the reverse side. If the information is lacking, or you are in doubt, obtain a copy of your state's landlord/tenant law. In cases not involving nonpayment of rent, a notice, depending on the laws of your state can be from two to thirty days (depending on the severity of the problem). The norm is a rental period of thirty days. The problem with this thirty day notice, as mentioned in chapter eight, is that if your rent is due on the first, the notice must be served before the first of the month, in most states, giving the tenant until the last day of the coming month to vacate. If the tenant's rent has not been paid, and many aren't because of the state laws, or landlords who grant unnecessary grace periods, many tenants have a tendency to withhold their rent payment for the coming month, and start looking for another place. If this happens, switch immediately to the "move or pay rent" notice which is for a much lesser time. You DO NOT have to wait till the first notice has run its course if the tenants fail to pay their rent as agreed. Tenants are still legally obligated to live up to the terms of their lease agreement, especially the terms which cover payment of rent.
Many landlords wait till the first notice (and the usually longer period of time it allows) has elapsed. Don't do it. The idea is to get the notice requirement, and the days it allows, out of the way so you can start an eviction if necessary. Notices for nonpayment in most states require only from three to seven days to elapse before you can move on to legal action. Waiting till the longer notice is up with expectations the tenant will "just move" can cost you valuable time and money. If the tenants don't pay their rent and you do not act immediately, many tenants will linger longer, waiting to see what you will do. In addition, unless your state requires it (as in Georgia and Texas under certain circumstances for nonpayment), never give a tenant more than one deadline to move, or conform, unless they commit a second offense which requires a shorter deadline. As an example, if you give a tenant a thirty day notice to move and he does not abide by a section of his lease which requires a ten day notice--switch to the shorter deadline. However, you would not want to give a tenant a thirty day notice after you have given him a ten day notice. Remember, your main objective is to get the notice requirement and the days it allows over with as fast as possible so that you can proceed to the next stage. In all but a few states the "pay or vacate" notice allows the least days.
It should be mentioned here that you do not have to start an eviction against a tenant who skips out. You can take possession right away. However, when any "goods" (usually junk) are left behind, the unit comes under the law of "abandonment." In most states if you are sure the tenant has not visited or used the rental for more than five days while behind in the payment of rent, you have the right to take possession. But, all states have different laws governing how you must take possession. Your state landlord/tenant act contains the information.
Bluff, Bribe or Intimidate?
When tenants fail to conform, pay their rent, or move after the expiration of the notice, you must move on to what many people call eviction. Some landlords try to avoid the cost of evicting tenants by trying to bluff, bribe, or intimidate the tenant into moving. You are advised to avoid it. It does not work in most cases.
If tenants still remain on your property after you have given them a legal notice with a deadline, you can be sure they don't scare easily. Trying to bluff is a sure way of lengthening the situation since many tenants believe it takes months to evict them. The reason for this belief among tenants is many landlords try all kinds of bluff while valuable time expires. Most tenants know the law at least as well as landlords, especially the landlords who have not read their landlord/tenant laws. Telling tenants they will have trouble finding housing in the future or that you will have their credit ruined is enough to make many of them start laughing the moment you turn your back. Bad tenants do not look that far ahead. That is why they are bad tenants. They live for today, not for the future.
On the other hand, trying to bribe tenants can usually backfire since tenants will assume you are at a disadvantage. Many landlords who have tried bribery could have evicted the tenants much cheaper when the lost time was added up.
We will admit that intimidation works if you are the intimidating type. However, it takes a special landlord who can look a problem tenant in the eyes, and have the tenant move to avoid a future confrontation. Even if you are the type to inject fear into others, and back it up, intimidation is not advised.
The overwhelming majority of evictions are started because of non-payment of rent. Therefore, you should be aware of how the tenants who provoke the eviction process deal with it. There are basically three different groups we have observed. Trying to bluff, bribe or intimidate these people is almost impossible.
The first and largest group is the younger tenants. They don't realize what their responsibilities, or the laws are. They have the attitude: "I don't have the money, I'll pay when I get it." They have recently left home or have never had any problems paying their rent in the past. When a financial problem develops, usually of their own making, they feel you should wait until they get the money. Many believe there is little you can do about it. Most believe wrongly it will take at least two months or longer before you can put them out.
The second group contains people of all ages. They know their responsibilities but look at rent payments as the last priority on their lists. They usually are manipulative with "poor mouth" stories and will try to get you to sympathize with their problems. If allowed, they will sit in a rental of an unsuspecting landlord as long as they can, making small payments and falling further and further behind. They will move or pay only when you take serious action.
The third group is made up of tenants who move into a unit and pay their rent well the first few months. Then, about the time the landlord thinks they can be trusted, rent payments start falling further and further behind, and finally stop. They go from landlord to landlord and stretch out their free rent time as long as possible, always assuring the landlord they will either pay or move out any day. They never pay and they never move until the day before the sheriff comes to move them out.
This last group encompasses every kind and type of tenant from the highest to the lowest walks of life: women, men, married or single. Some have jobs while others are on welfare. They are professional deadbeats who know all the angles and landlord/tenant laws better than most lawyers. Ironically, some are past "resident managers" who learned about the law by working for large multiplexes. Some of these classless operators are evicted two or three times a year. These deadbeats can beat an unsuspecting landlord out of thousands of dollars. (By the way, the word "deadbeat" is defined by Webster as "one who persistently fails to pay his debts or way." The word was coined in the late 1800's when railroad workers noticed that loaded freight cars made a different beat over the track-joints than cars that weren't carrying a load. The empty cars made a "dead beat" which meant they weren't paying their way. By the beginning of this century the word appropriately encompassed people who failed to carry their share of the load also.)
You will notice we did not mention anything about the truly needy people who develop money problems. The reason is these people usually know their responsibilities and will make arrangements to move to a relation's or friend's house, or they find cheaper housing until they get their lives in order. In our combined years of landlording, we have never had to evict a truly needy person. We have evicted people who were short of money because they spent it on what they wanted, then tried to beg from us what they needed.
So, chances are if you are having problems with a tenant, it will be a tenant who just doesn't know the law, or knows, and will sit in your property waiting to see what you will do. Once tenants show through their words or actions they have no intentions of conforming, moving or paying, we have found the easiest, surest, and least expensive way of getting them out is to start an eviction against them immediately.
If you have handed or sent the offending tenant the notice in the prescribed manner according to the laws within your area, there is no reason to wait past the deadlines of your notices. There is no money to be saved by bluffing, bribing or intimidating. If the tenant approaches or calls you pleading to wait one more day, don't--it's always one more day. You or your attorney must start an Unlawful Detainer Action.
Unlawful Detainer Actions:
The word eviction is used legally only when tenants stay on a property after the court has ordered them off and it is necessary for the "law" to come and put them out. That seldom happens. In 99.5% of the cases, the tenants will move before they are forcibly put out. In all our years dealing with tenants we had only two such evictions. The correct definition of legally removing someone from your property is referred to as an Unlawful Detainer Action.
Over the years, we have come to realize that many landlords are unaware of what is occurring when they start an "eviction." The terminology, procedures, and legality were just as bewildering to us the first three or four times we started an Unlawful Detainer Action. Most land-lords never have more than two or three evictions in their lives. Therefore, the following discussion of an Unlawful Detainer Action is intended to help landlords who have little knowledge of the legal process.
An UNLAWFUL DETAINER ACTION is a legal means of getting the tenant, for whatever reason, out of your property which you claim is being UNLAWFULLY DETAINED after you have notified the tenant to move. It originated hundreds of years ago and is basically derived from old English law. The reason for the procedure is there are bad landlords and tenants today as in the old days. The court does not know whether you are trying to take unfair advantage of the tenant or whether the tenant is trying to take unfair advantage of you.
Hundred of years ago when kings, dukes, lords, and tenants ruled the land and abused the peasants on it (none more so than the tenant who sublet the land), they made agreements with one another. Normally, they were honorable men who had their differences. If a Land Lord had a dispute with one of his tenants, he would order the tenant (not the peasants the tenant was abusing) off the land. If the tenant failed to move, the Land Lord could run the tenant off the land (and now and then "run the tenant through" with his sword), and that would be the end of that.
For better or worse, the western world became more civilized as tenants, who were unfairly taken advantage of, demanded justice. As the years progressed it became illegal to abuse tenants (although nothing was said about the peasants). In time, Land Lords gave up their right to handle their own evictions and courts of law began to hear complaints to determine whether the tenants had justification for remaining on the property.
So, in effect, what you are doing as Land Lord is going to the court and COMPLAINING that there is someone in possession of your property who is not abiding by the agreement that you and s/he made. You tell the CLERK of the court that the tenants are up to no good and you have notified them (sent notices where required) to pay, conform or move; yet, they have not responded. Since you cannot "run the tenant through," you want the court to do something about it.
The clerk will ask you (or your attorney who is acting on your behalf) what your COMPLAINT is. Then, you put your COMPLAINT in writing, and the court issues a SUMMONS to the tenant telling him or her to ANSWER the charges in writing or (depending on your state law) appear at a hearing at a certain day and time (usually within seven days) and SHOW CAUSE why s/he is still on the property if the landlord is telling the truth. (The court expects that you are.)
The SUMMONS and COMPLAINT (the complaint is not always required) along with the order to SHOW CAUSE (in some states) is taken by you, or your attorney, and given to anyone over the age of eighteen who is not a party to the action (no relations). They must deliver it to the tenant. The tenants must then answer the SUMMONS and COMPLAINT and/or appear before the court (come to the hearing) on the date and tine specified (five to ten days) and SHOW CAUSE why they have not paid rent, conformed to their agreement, or vacated the property.
Sounds easy, doesn't it? It is. The majority of tenants served with a summons move before they must answer it. For nonpayment of rent (depending on the number of days allowed in the notice plus the number of days the court gives the tenant to answer the summons) in all but a few states nine to seventeen days have past from the time you gave or mailed your first preliminary notice till the majority of tenants move out. For states that will let you waive the notice requirement, or for states that do not require a notice, around five to ten days have elapsed.
If you are wondering why the tenant is given five to ten days to answer the summons, the answer is simple: Nearly all of US law is based on old English law. In Old England, hundreds of years ago, courts of law were few and the distance between them great. Traveling over dirt roads by ox cart averaging 3 mph, took five days in some areas and as much as ten days in other areas for the remotest landlords and tenants to reach the court. For some reason this excessive allotted time has never been reduced. (The wheels of justice move slowly.)
Although landlords can start an unlawful detainer themselves, we advise employing an attorney. An attorney acting between you and the tenant shows you are very serious. With an attorney, you are also spared the poor-mouth stories that can bring tears to the eyes of a cold-hearted banker. If you contact an attorney who specializes in evictions, your cost up to this stage will be around a hundred dollars, seldom more than a hundred and seventy-five.
Do not, we repeat, do not, contact your attorney. State and local laws can vary considerably in dealing with tenant/landlord relations. Your attorney may be excellent in dealing with tax laws, wills, business, probate, and suing large corporations for you, but s/he probably doesn't know the first thing about removing a tenant from your property and won't admit it.
Even the federal government understands the problem of unqualified attorneys taking cases they understand little or nothing about. The government advises in its "How to Choose and Use a Lawyer" pamphlet, that you "...ask the lawyer for references and check his or her experience with your type of case." It is a shame that lawyers only post their diplomas on the walls of their offices instead of their report cards. From what we have experienced, it appears they all received A's in auto collision cases and F's in landlord/tenant relations. Through the years, we have had to explain the Unlawful Detainer procedure to more than one attorney, and given others information on what "chapters" to consult in their many law books. If you were to engage a lawyer who had no experience in landlord/tenant relations, you would be paying him/her around one hundred-and-fifty dollars an hour to look up the procedures before s/he can even begin the Unlawful Detainer process.
In any case, when you do find an attorney or law firm that specializes in this field (consult apartment associations) the cost and time are nothing to the possibility of what you can lose. The price is inexpensive because the attorneys specializing in this field charge by "stages" and most tenants move before the case goes to court. In addition, in many states there are legal "short cuts" in this field that only an attorney specializing in landlord/tenant cases is aware of. As an example, many areas will let the attorney handle the initial stage of a nonpayment case without involving the courts, which can save you time and money. To evict a tenant, in most cases, doesn't cost one half or take half the time most landlords and some attorneys believe.
One of the worst areas in the country to evict a tenant for nonpayment of rent are certain counties in southern California. We have heard some landlords from that area claim it requires "two or three months" of legal hassle to move through the Unlawful Detainer process. If one acts quickly however, and has an attorney who knows what s/he is doing, the time can be cut to less than a month even if the tenant uses every trick in the book to extend his stay. To prove the point, there is a tenant's organization in Los Angeles which has a computer containing the names of landlords who are "fast on the evictions." These landlords would not be fast on the evictions if it took "months" and wasn't the profitable thing to do.
As mentioned earlier, it is not necessary to use an attorney, but the time and tedium of doing something so seldom (if you choose good tenants) is not worth the small amount that it costs in the majority of cases. If you do it yourself, many troublesome tenants believe that it is just part of a bluff and will linger longer. When using an attorney, over 70% of all Unlawful Detainers end with the tenant vacating before the hearing date.
If the tenant fails to answer the SUMMONS or fails to appear before the court on the date specified, but has not moved, papers must be filed for litigation. This is when things can get expensive and everything gets very complicated. Nevertheless, the court will automatically (in all but a few states) issue a WRIT OF RESTITUTION on your behalf ordering the sheriff "...to clear out any property found on the premises and to break doors or windows if necessary to gain admittance" (as one state law put it) so as to remove the tenant from your property and RESTORE it to you.
A growing number of tenants who have been educated by tenants' rights groups and/or tenants' rights pamphlets are opting for this "choice." They know the law and wait till the sheriff comes to deliver the writ of restitution. This writ, unfortunately, notifies the tenants they have another week (in most states) before the sheriff comes to evict them if they do not move voluntarily. The tenants will normally stay till the day before the sheriff comes. Naturally these "tenants" get additional time to move, and the legal fees can triple in many states because of the papers that must be filed. But, if the tenants are still on your property at this point, one can imagine how long they would have stayed if the action had not been taken.
In some states, another group of unscrupulous tenants have found how to obtain more additional time before they have to move. They don't show up at the hearing because they can answer the SUMMONS in writing or even make a phone call in some areas. If they claim their car won't start, their kid is sick, or you didn't make some minor repair in the unit, the court will normally reschedule the hearing for the following week in most states. There are some areas, such as southern California, that can give the tenant up to two weeks to appear. In some states the court will even schedule the case directly for trial, with or without a jury. However, except in the rarest circumstances, the tenants must show up at the next hearing or trial. If they don't show up, and many don't, they are still given another week by the court to get off the property. It is just another loophole in the law which unscrupulous tenants use in prolonging their stay. In states which grant mandatory grace periods, require notices of more than a few days, and give tenants an excessive number of days to reach the court, the time can add up. However, you can take satisfaction in knowing you were dealing with a "hard case" and if you hadn't started your legal action when you did, they would have sat in your rental for a few months instead of a few weeks.
Through ignorance, shrewdness, and occasionally due to an unscrupulous landlord, about two out of every ten tenants being evicted do show up at the hearing to SHOW CAUSE why they are still on the property. Some hope to find a sympathetic judge who will give them more time. Others believe that if they show up they will not be put out and others really feel they have a good excuse and the court will see their point. (Since the overwhelming majority of cases are for nonpayment of rent we will primarily address the rent issue from this point.) Be prepared to listen to some of the most exaggerated, convoluted, and self-serving "testimony" imaginable. Also be prepared to say only about 10% of what you were planning to say. The "law" in nonpayment cases is usually cut and dry, but depending on which judge or commissioner one gets, the legal system can seem very disconcerting. Anyone who believes that the ex-attorney now "sitting on the bench is impartial" is in for a very big surprise.
We had one case for nonpayment where the tenant showed up and the commissioner at the hearing actually started "leading" the tenant as to why she didn't pay her rent. We were asked for her rent record and when he noticed there had been a rent increase over four months before, he actually tried to get her to claim she had a grievance about it, even though we had given her 60 days notice of the impending increase and there were no rent control laws in our area. Fortunately our tenant was too ignorant of the law to understand if she had agreed with the "judge" he would have rescheduled the hearing for trial and she could have prolonged her stay. He reluctantly gave her the prescribed week required in our state to be out, but made a point to inform her she did not have to be out till midnight of her last day. From the time we gave her the first notice till the time she was out took 18 days (3 days for the required notice, 8 days till the hearing (remember the ox cart), and 7 days that she was allowed by law to get back in her ox cart, return home and get out).
It should be mentioned here that a "judge" can let a tenant stay longer than what the written laws of your state decree. Although it is rare, it should be remembered judges have unbelievable power and it is not beneath some of them to circumvent laws that have been adhered to for hundreds of years.
On the other hand, there are sensible judges (they probably own property) who can speed things up and don't put much credence in the stories they hear. In one such case we had a tenant show up at the hearing and the judge asked her if she had paid her rent. As she started her poor-mouth story the judge cut her off immediately with the statement: "It's up to you to get your life in order; if you're not going to pay, make other arrangements as soon as possible." From the time we put the notice on that tenant's door till the time she was out, took 10 days (3 days for the required notice, 6 days "traveling time," and although the tenant was given the prescribed 7 days to return home and move, she moved in 1 day because of the judge's scolding).
To be sure, the state we were operating in only required a three day notice. A hearing is scheduled as soon as possible after giving the tenant five days to reach the court. Then, the tenant usually gets seven days to get back home and move out. But, there is no reason it should take longer than 16 to 20 days in any state where similar lengths of time are required. The reason is simple.
When Land Lords gave up their right to handle their own "evictions," they demanded the courts give priority to their cases, understanding the wheels of justice turn slowly and it could affect their profitability. Those Land Lords may have had to agree to a five or ten day travel time because of the condition of the roads in those days. However, they demanded the courts set a date for landlord/tenant disputes that did not EXCEED a certain number of days. As an example the state of Pennsylvania gives the tenant "not less than five nor more than eight days" to appear at a hearing or court date. All states have similar laws though the time allowed may vary (it all depends on which part of old England the writers of state laws came from).
Some judges get upset and have been heard to complain about "minor" landlord/tenant problems "cluttering up" their calendars. They would like to see the law changed. This law is one of the few laws which benefit landlords. (This is why other offenders can keep getting their trials postponed for months or even years. Tenants can't unless they pay.) With all the grace periods, notice requirements, time to reach the court, and time allowed to return home and move, tenants have enough benefits (or should it be called "entitlements"). Many apartment or rental associations keep track of judges who are adverse to landlords and do what they can to vote them out of office--another good reason why you should join an apartment association.
Nevertheless, there are also times when the judge, justice of the peace or commissioner at the hearing will find substance in the tenant's reason for remaining on the properly. The case, therefore, may be scheduled for court. As stated earlier, sometimes a jury (usually with only six members) is actually used. As with the hearing, these cases are normally scheduled within a week because landlord/tenant disputes concerning payment of rent, take precedence over most other cases in most states.
Naturally the classless operators, professional squatters, and deadbeats seldom show up for the court case. It is just one more of their ways of using the law to prolong their stay. Only once in our experience did a tenant show up for a trial. (We won.) If your case ever comes to this point, you will be under the wing of your attorney. There is little cause to worry if you have acted correctly. For nonpayment of rent, landlords normally win their cases except for four reasons. I. They failed to prepare properly and bring records of the tenant's payment history, etc. 2. They failed to deliver the notices, where required, in the proper manner. 3. They accepted all or part of the rent after the case was set for court. 4. They failed to repair items that were not the tenant's responsibility. If there is proof to substantiate this last charge, the court can order the landlord to make repairs and the tenant may not have to pay rent for the period the unit was "uninhabitable." (This is another good reason for a Condition Report.) If you rented the property in good condition, prepared your case well, and sent your notices in the prescribed manner of your state, a case involving nonpayment will normally be decided at the hearing and the tenant will be gone in an additional week or two in almost all instances. When you win your case, whether at the hearing or court, and money is owed you, the court will issue you a JUDGMENT that the tenant is supposed to pay. Besides back rent, you are also awarded attorney fees, filing fees, and interest in almost all states.
Boy! Does that JUDGMENT, containing the amount the tenant owes, look nice and legal. Trying to collect it makes one wish for the return of the old days. Today, almost all tenants evicted for nonpayment of rent are what attorneys refer to as "judgment proof." Simply put, judgment proof means that there isn't any way you can collect a penny from these people because they have no "real property." Even if you go through the legal maze of obtaining a writ of garnishment, your time and effort will probably be for naught. If your ex-tenant's own an older car, they can claim they need it for reasons of illness or work. If they own a newer car, they may not have enough equity to cover your bill. You can't touch their personal possessions which consist of almost everything in their home nowadays. If they have a job their income may be considered too low to attach their wages. You may also find that there are two or three other landlords or creditors ahead of you.
Obtaining a judgment from a court is almost meaningless today. Even the biggest majority of people awarded judgments in small claims court never collect a dime. Tenants who owe landlords fail to pay their bill over 85% of the time. The fact that the tenant may have defrauded you and spent their money on what they wanted and not their legal obligations means nothing.
The reason an unscrupulous tenant can take such unfair advantage of a landlord, and the wheels of justice seem to be as wobbly as the wheels of an old ox cart, is because laws are outdated. In those bygone days of the English countryside, when a summons and/or complaint was delivered to the tenant, it was expected he was a sensible and honorable man. Land Lords and tenants were expected to reach an agreement on their own before there was any need for the court to intervene. If the court was used, or the tenant didn't move till the sheriff came, the time involved seemed inconsequential. In those days, if the tenants were found to be in the wrong, they would have to pay. If they didn't, a Land Lord could claim everything they owned, which usually covered the amount they owed. If the tenants didn't have enough to cover what was rightfully the Land Lord's, they could end up in prison. With the passage of time, changes have occurred. Today, the tenants who remain on your property, after being served a summons, have no intention of reaching an agreement or paying. They are just stalling for time. The law however, still looks at these deadbeats as sensible and honorable people and takes it for granted they will abide by the court's decision and pay if the court orders them off the land.
Unfortunately, between those old days and today, laws have been passed which make it impossible to collect from most of these people. Laws have also been passed that prohibit placing debtors in prisons. In spite of this, nothing sensible has ever filled the void; yet, the courts function as though nothing has changed. Consequently, the court has almost no power to back up its judgments when it comes to people owing money. So, it plays the cuckold and pretends that everyone will do the honorable thing.
The courts, unfortunately, are your only recourse. In the future, when more landlords begin supporting their local apartment or rental associations, legislators who want to keep their jobs may see that five, seven or ten days is not required for tenants, or their representatives, to reach the local courthouse and an additional five, seven or ten days is not required for them to get home again. With our highway systems today, one day is more then sufficient for either direction, Those same legislators may also realize that letters (or phone calls) should not be accepted either. This practice also started under old English law when traveling was too expensive for many tenants--it makes no sense today. Tenants or their representatives should be required to show up at a mandatory hearing or forfeit their case.
Nonetheless, if you are forced to start an unlawful detainer action, do it correctly. Make sure you deliver your notices in the prescribed manner of your area. If the tenant does not pay, move or conform, start a legal action immediately. Don't bluff, bribe or threaten, for you may have a tenant who knows the angles and you could find yourself in more trouble.
If you really want to know what you can or can't do in preparing for an eviction, consult tenant rights pamphlets. They explain to tenants in plain English all the loopholes they can use to prolong their stays.
After the tenants are out, send them a bill at their last known address (see Withholding Security Deposit). If they don't respond within thirty days, turn the judgment and/or your bill (if the tenant moved before the hearing) over to a good collection agency. As stated earlier, don't expect to collect any money. In 1977 our 95th Congress (looking for votes at the expense of justice again) pushed through an act, "Debt Collection Practices," which protects debtors "against debt collection abuses." This act goes so far as to restrict collection agencies from using their return address "on any envelope" mailed to the debtor which might even contain a "symbol" that the letter is from a collection agency (section 808 (8)). The congress was concerned such a symbol could be an "embarrassment" to the debtor since the mailman or some other "third party" could read the envelope. The congress felt these kinds of "abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to the invasions of individual privacy" (section 802). It appears the congress was "unconcerned" that people who fail to collect may experience "personal bankruptcies" or "marital instability" which would surely affect their "privacy."
Ironically, if guests in a hotel skip out on their bill, they are treated as the criminals they are and can be arrested if they fail to pay. A tenant, on the other hand, can defraud a landlord out of thousands and nothing, absolutely nothing, can be done. It would be very easy to put tenants in the same classification as a hotel guest until something is done about our antiquated laws. It should be remembered that it is the "good," normally lower income, people who are paying higher rents due to the sterility of the courts and the law.
Nevertheless, your ex-tenant's name will go on record for at least seven years. In a few rare occasions some of these people will one day apply for a loan or some other credit using their real name, and you may collect a few dollars. The most important thing is another unsuspecting landlord may find out about them and be spared the trouble. If anyone calls you inquiring about these people, tell the truth. The largest percentage of truly bad tenants remain bad tenants all of their lives.
If you use some common sense practices along with your perception, the chances of having to evict someone are very rare. But if the day comes when it appears you have a bad seed living on your property, act quickly. Never sympathize with anyone who fails to live up to his or her legal obligations. A few years ago, we evicted a "poor" woman with dependent children who had continually violated the provisions of her lease. She not only failed to live up to her legal obligations and pay her rent as agreed, but was one of the most contemptuous and uncooperative people imaginable. She didn't show up at the hearing and when the sheriff called to inform her what day he would be there to evict her, bodily if necessary, she hung up on him. Everything was done legally and yet she ignored everything, believing no one would put a "poor" woman with "two little children" out in the street.
As we were putting the last of her possessions out in the street, we had a neighbor contact her. She was told what was happening so she could return and keep an eye on her things before someone started carting them off. She returned in such a rage the sheriff had to restrain her and threaten to "put the cuffs" on her and take her "down to the station" if she didn't calm down, (It looked like a scene out of a TV movie.) As we removed the last of her possessions and placed them in the street, she finally walked away from the unit door and cut across an area where a neighboring tenant had planted a flower garden. Our new ex-tenant, still in a rage, deliberately trampled the plants into the ground. Cultivating plants is like cultivating tenants; although rare, there are the disappointments.
1. Keep records of any talks, letters and especially notices when dealing with a troublesome tenant.Top of Page
2. Don't waste time. Start an unlawful detainer action as soon as possible if tenants do not pay their rent or conform.
3. Don't expect to collect a dime when issued a judgment by the court.
4. Make it a point to obtain a current copy or interpretation of your state and area landlord/tenant law. Although we spent a year checking and cross checking the law stated in this guide, laws change. Laws also vary from place to place and research methods are subject to error We found some state landlord/tenant acts contain laws in one section that contradict laws in another section. Also, some of the pamphlets produced by city or tenant organizations, that "explain" landlord/tenant law to consumers, contained outright errors. As stated in Chapter Five, detailed legal research may be necessary in determining the exact laws of your locality. Apartment or rental association meetings, whose members have personal experience, are one of the best places to get answers to your particular questions. Good Luck.