10 Things to Be Sure to Do When You Evict

By Robert L. Cain

No landlord likes to evict a tenant even if he or she has had enough and the tenant deserves to be evicted. It is a lot of trouble and takes a lot of time and energy, not to mention lost rent and court filing fees. But when you do evict, make sure to do it right, or it likely will cost even more up to and including a tenant getting to stay rent-free for a month or two.

Here are 10 things to be sure to do when you boot out a tenant.

1. Use the right form. If this is an eviction for non-payment of rent, be sure to have served the proper late rent notice that is current with state law.

This is by far the area where landlords make the most mistakes. It is here that they have to be most careful. They may not even have really made a mistake, but simply omitted some minuscule point that really had no relevance to anything, and they lose the eviction.

The first is using a bad or incorrect form. The most important thing to do is use a current, correct form. The form must apply to state and local law, be up-to-date, and be appropriate for the situation. Local apartment, landlord or multifamily housing association have those forms.

2. Serve it properly. With the right form, make sure that all the dates filled in on the form are correct: the date mailed or delivered, the date by which it must be paid or the tenant has to move (adding the appropriate number of days, if any, for delivery). The number of days is extremely important. Each state’s Landlord/Tenant Law dictates when a notice becomes effective. When do the days start? Do they start as soon as the notice is delivered? If so, how does one determine if it has been delivered? Maybe the counting starts the day after the notice is delivered. Do weekends and holidays count? Each state’s landlord-tenant law makes that relatively clear.

Do weekends count?

R=Rent due; N= Notice hand delivered or posted; M= Notice mailed; 1= Day count; X= Days that don’t count; H= Holiday

With a hand delivered notice, make sure that the tenant or a responsible adult accepts it, not a three-year-old. The notice is not considered delivered if the person to whom the landlord gave it had no idea of its importance. That might include a teenager. The best bet is the tenant him or herself.

3. Inspect the property. Schedule a property inspection to see first how to tenant has cared for what will soon no longer be his or her home. Make notes, take pictures with date and time stamps, write dates and times. If possible, take someone along as a witness as to the specific date and what was observed. To ensure that a tenant can’t say the inspection was not when you claimed, never happened, or is inaccurate, have the report and photos notarized for extra protection.

4. Turn down rent. If a landlord sent a three-day pay or quit notice to a tenant and she shows up on day four with partial rent, accepting even so much as a dollar will start the process again. If the landlord wants to let the tenant stay, that’s fine. But if the intent is to evict, it will throw a wrench into the works.4a. Just as dangerous is refusing to accept rent within the three-day period if paying the rent within three days is what the notice required the tenant to do. Too often, landlords just want the tenant out, so when the rent is offered, they turn it down and go ahead with the eviction. It doesn’t work. The judge will throw the case out and possibly even give the tenant some free rent.

5. Have all the paperwork. That means everything. Whatever is in the tenant’s file goes to court.. There is no need to cull out anything that is irrelevant because as sure as it leaves the file, the judge will ask for it. Make copies of everything to submit to the court, too.
6. Look professional. Show up to court in shorts and flip-flops, count on the tenant wearing, for the first time in his life, a suit and tie to court. He might even have gotten a haircut, taken a shower, and shaved.
7. Have a plan for your testimony. Never wing it. Make notes as to what to say in what order and be prepared to provide the paperwork for each point of the testimony. That means the tenant file needs to be in the same order as your planned testimony to avoid rummaging around for the proper items. Practicing the speech will help, too. But be prepared for the judge to interrupt with questions, so have notes handy so as not to lose your place.
8. Be prepared to work out a deal. Judges would much rather have the two parties come to an agreement as to when the tenant will vacate rather than having to make a ruling. Some judges will ask the two parties to go out into the hall to see if they can work something out. Come up with a plan that is mutually acceptable, then write it down and bring it back to the judge. He or she will write an order to that effect that is every bit as good as a judgment he or she might hand down from the bench. Obviously, if either party can’t or won’t work anything out, tell the judge and get the judgment.
9. Get the judgment. It needs to be in writing and be sure to find out if needs to be done with that judgment before the tenant can be booted.
10. Use a police officer on eviction day. Some counties and state require a sheriff’s deputy to do that and in others it is optional. It is not optional for a landlord no matter where the eviction is taking place. It is essential to have someone who can keep the peace if a tenant decides he isn’t going to move or otherwise goes sideways.

Most important in all this is to do it right. County clerks have the forms, so use those. Never make up your own, never get them from an office supply store, and never get them “free” off the internet. Evictions are legal procedures, so do them legally. If not, there can be a huge price to pay.