Today, we’re talking about how to successfully evict a tenant who doesn't pay their rent on time.
My number one tip is to avoid evictions altogether. Evictions are costly, you’re going to have attorney fees, and it’s an ordeal that takes time. Time is money, so you want to get through it as quickly as you can. Evicting rental property tenants may possibly be avoided with proper screening techniques during the leasing process, conducting back ground checks and proper expectation setting before the resident move into your property.
If you’re in the unavoidable spot of having to evict a tenant, there are some steps you can take to speed up the process and have an efficient and effective eviction.
Serving the Proper Eviction Notice
The eviction process starts with an initial notice. Your initial notice could be the tenant’s notice to vacate or the 30 or 60 day notice to terminate at the end of their lease term. Usually, you’ll be serving a Pay or Quit notice for failure to pay rent on time. This could be a three or five day notice depending on the state. This notice can be given in person, sent via mail or electronically via email or owner platform if working with a tech enabled property management company.
If you’re evicting for a breach of the lease that cannot be cured or due to illegal activity, you’ll have different timelines and formats for the notice. It depends on the state. Just make sure you’re serving the tenant with proper notice to get started. You should have a form that allows you to plug in the appropriate information. An example of this might be a tenant not paying rent or missing their rent due date for many months in a row. Check your local rules and regulations to understand what is and isn't allowed in your area.
On the notice, include the name of every adult who occupies the property and is on the lease. You will include the property address, and you’ll have to include the amount owed. It will again depend on jurisdiction as to what you can include in the amount that’s owed. For example in California, you can only include past due rents that are owed. You cannot include any late fees or any other penalty fees.
Make sure you do not attach any notes to your notice. Don’t use this as an opportunity to send a letter with the notice. This is your statutory notice which is a prerequisite for filing for the eviction. It has to be right because if it’s defective, your eviction may never move forward or start from scratch. Be sure the notice contains only in the correct information and there are no defects to it.
Serving the Eviction Notice Personally
Once you have your notice filled out, the next step is to serve it.
In every jurisdiction, the best method of service is personal delivery. This means you are physically handing the notice to the tenant. There are other methods that are available such a substitute service where the notice is handed to any adult that answers the door, not necessarily the person you are trying to evict. Then, you would follow up with a mailing.
There is also the option to post it on the door and follow up with a mailing. You’ll need a proof of service included in your notice or as a separate form which states that the notice was served and notes the date and time. It will be attached to the notice with your eviction files as evidence that you properly served notice.
Gather and Organize Documentation
Once you have served your notice, you want to start gathering your documentation.
Again, an eviction delay is costly, so as soon as your notice expires, proceed to file the eviction paperwork. You’ll want to have your case file with the documentation ready to send to your preferred eviction counsel once that notice has expired. That way, they can start the process to present the documents and prepare the Complaint.
A good eviction firm will be able to prepare the Complaint that same day and depending on the timing, file it that day or the following morning. And again - each of these steps is preparing for the next step, so if you can cut out a day here or a day there, it all adds up to getting your property back into an income producing state.
The documentation you’ll want to provide includes:
- Copy of the lease
- Copy of the notice you served
- Copy of proof of service
- Copy of the ledger showing the amount owed if this is a nonpayment issue
Essentially, you will want to include any information that is relevant to the breach of the lease and any documentation to support it. If the tenant didn't pay their rent on time, include documentation to show that rent was not collected and any direct followup with the residents that might have occurred.
Filing the Complaint
Once the Complaint has been filed, your eviction counsel can start the process to actually serve the Summons and Complaint. This is different than serving the notice. This is the actual Complaint that has different statutory requirements, and every state is very specific on how it can be served. But again, personal service is the best service, and in California, if you are able to have that Complaint served personally, the tenant then has five days to prepare and file their response or answer to the court.
If they fail to do so you can take it as default. With personal service they get five days and with the other methods, such as substitute service, you have to add 10 days for their time to respond. If you try to substitute serve and you cannot get anyone to accept delivery of the papers, and you have made reasonable efforts to do so, you can go to the court and ask for a court order allowing you to serve the Summons and Complaint by postal mail.
You do have to prove to the court that you have made reasonable attempts to make a personal delivery before they will allow you to post it to their door or send it by postal mail.
You can lose a lot of time going through that process and it is a very costly delay. If you have information that will help your eviction counsel or process server successfully complete a personal service, by all means, include that with your package. If you know when your tenants are typically home, or you know where they work, get this information to the eviction counsel.
The Tenant’s Response to Eviction
Once the Complaint has been served, the tenants may do nothing, which is a non-contested eviction. In this case, the five days they had to respond will pass, and you can take a default judgment. This is the best case scenario. In California, once those five days have passed, you can file a Request for Default and a Request for an Entry of Judgment of Possession at the same time. You’ll get an immediate judgment for the possession of the property, which you can then take over to the sheriff and get them to schedule the actual eviction or lockout.
By possession, we mean that you’re only getting possession of the property back. At this point, you cannot include money damages in that judgment. You can go pursue money damages later. But if you have the opportunity to get the judgement of possession right away, by all means, that is the most important piece. You need to get that property back, get it renovated and get it leased out so it is producing income for you.
If the tenant files a response, you have a contested eviction. This means before the time has expired, they filed an answer to the Complaint with the court and may be represented by counsel at that time. The first thing their counsel will do is take a look at your notice and try to find a defect with your notice. If they do find a defect or something they do not like, such as including late fees, they have the opportunity to file a motion. That is a big delay as you now have a hearing on the motion and go through the statutory timeframes to do so.
This is why getting getting the notice right is so important. There are various other delays that the counsel may take such as asking for more information which is really nothing more than that… a delay tactic.
They could also request a jury trial just to delay things because it takes the court a longer time to schedule a jury trial. If it is just a regular trial, you’ll appear only in front of the judge. When just the judge is hearing your case it can be scheduled a lot quicker than when a jury is involved. Jury trials are also more expensive and it is often a tactic that is used to put pressure on you to settle the case rather than going through the trial.
Worst case scenario, you have a defendant that has filed bankruptcy. Again, this is usually just a delay tactic, but it’s a harmful one because as soon as you file bankruptcy your case comes to a halt. Now you have to go into federal bankruptcy court and that is a different court system.
Focus on the Notice
The most important thing is to nail that notice.
Taking steps to avoid eviction is best case scenario. If you can get ahead of these things through communication and setting the right expectations with your tenant, then avoiding the eviction is going to be your best route. But, if you’re already heading into eviction territory, really focus on having the right notice and the proper statutory language. Make sure you understand what you can and cannot include in that.
It is also important to understand what you cannot due during the eviction process. Even if your tenant hasn't paid rent, you are not allowed to force them out of their home without law enforcement presence. You cannot change the locks or disconnect power in an effort to get the tenants to leave.
At the end of the day, the best way to approach tenant evictions for not paying rent is to properly prepare to avoid evictions in the first place. The second thing to keep in mind is taking the emotion out of situation. Do this by being prepared, treating your investment property as a business and following legal guidelines.
Make sure all your documentation is organized and ready to give over to your eviction counsel so it gives them the time to prepare the Complaint. It also allows them to move along as quickly as possible so they do not have to come back to you for additional information.
If this is all too much to handle, hire the right eviction firm. A good firm makes a difference in terms of marching your eviction through the process in a timely manner. A good property management company will have eviction fims on call or work with them directly in house. They are going to help you nail down all things related to tenants who don't pay rent resulting in an eviction.
If you have any questions at all, please contact us at Mynd Property Management. Hopefully you do not find yourself in an eviction situation but if you do, there are steps you can take to make it as painless as possible.