How to Properly Evict a Tenant
By Trenton T. Roberts, Partner at Roberts & Willie, PLLC in Houston, Texas
Even the best tenant screening methods may not protect you from having to evict someone from your rental property.
Often an eviction involves a tenant who is unable to pay rent, but it may become necessary as the result of another material breach of the lease, such as damaging the property or committing a criminal act on the property.
If your tenant refuses to leave voluntarily, you’ll have to go through a formal eviction. This can be a lengthy and arduous ordeal, but it’s important that you follow all the tenant laws of your state to protect yourself from liability.
In this blog post we will provide some things for you to think about should you need to evict a tenant:
- Notify your tenants of your eviction policy. Make sure they read your policy at lease signing and have them initial or sign a copy of it. This provides important documentation that they understand the policy if you ever have to enforce it.
- Avoid an eviction, if you can. Nicely, but firmly, ask your tenant to move out on their own accord if they are behind on rent or have a material lease breach. Give a deadline. Stress that this will allow them to avoid having an eviction on their record, which could damage their credit and affect their ability to rent another property. However, also be aware of your state’s laws, as threats to a tenant beyond what is contained in the lease or allowed at law may cause you to be liable to the tenant, often for amounts which far exceed the actual damages incurred by the tenant. Threats of criminal prosecution or credit damage may be problematic in your state.
- Hire an eviction attorney. An attorney will know the applicable state and federal laws pertaining to evictions, which can be complicated, and how to best protect your rental property investment. Specifically, even in eviction, landlords must take great care to make sure that all notice requirements are followed with respect to the withholding of security deposits, rent or other payments. In Texas, for example, a foot-fault in this area can cause the landlord to be liable to the tenant for three times the amount of a wrongfully withheld security deposit!
- Don’t retaliate. Your tenant has the right to complain about your property to the city code enforcement department. If they submitted a written request for repairs that you chose not to make, would they be within their rights to do the repairs themselves and deduct the cost from their rent? It would depend on the terms of your lease, but you almost certainly can’t legally evict them for that.
- Have a deadline. If you plan to pursue a formal eviction, make sure your eviction notice has a deadline to either move out or become current on their rent. Attach the notice to the front door and send it by certified mail or as otherwise prescribed in your state or by your lease. If you act flexibly on any deadline given, that may give the tenant legal justification to see future deadlines as flexible, so be consistent.
- Begin the formal eviction process if the deadline on the eviction notice passes with no action by the tenant. This requires filing a lawsuit at the courthouse.
- Document everything. If you have to go to court, you’ll need proof that your tenant violated the lease.
- If the tenant pays all rent and complies with the lease, then stop the eviction proceedings. You may be able to include filing and service fees from the eviction proceeding in the amount the tenant owes you, depending on your state and the terms of your lease.
- Call the sheriff. If your tenant isn’t out by the deadline, call the sheriff’s department to forcibly remove them. States allow various degrees of “self-help” (removal of tenants by the landlord him/herself) in this area, but even where self-help is allowed, it is better to leave it to the professionals in this area whenever that is possible.
- Don’t do anything rash. You may be fed up by this point, but don’t change the locks or turn off the utilities to force your tenant out of your rental property, as an emotional reaction. You may be breaking the law if you do and could end up negating any court ruling.
Keep in mind that the law varies by state and that property owners with holdings in a variety of markets cannot use a “one size fits all” approach when preparing and sharing tenant documents that pertain to eviction policies.
One cautionary word of advice applies to most jurisdictions: a great number of judges are incredibly friendly toward tenants, and where it is possible to do so, will search high and low for opportunities to rule in their favor. Landlords must be above reproach in their conduct toward tenants and keep fantastic records, in order to ensure that business continues as usual, even when an eviction must occur.
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