The following statements are common misconceptions about evictions from residential tenancies. Every one of them is wrong:
1. Common Misconception: A land lord can have police throw a tenant out or arrest him, if he or she doesn’t pay the rent or get out when the landlord tells him or her to.
Truth: A tenant cannot be arrested or jailed for not paying rent. The police will remove a tenant from the rental unit only if a crime has been committed or if a judge (after an eviction hearing) has ordered the tenant to get out. Failure to pay rent or to get out when the landlord says so are not crimes.
2. Common Misconception: The land lord has to have a good reason in order to evict a tenant.
Truth: In a month to month tenancy— which is what many tenants have; the alternative would be a tenancy for a specific period of time, such as one year—in most places in the country a landlord can evict a tenant for no reason or even for a bad or mistaken reason, so long as the reason is not illegal discrimination (race, religion, children, nationality, marital status) or illegal retaliation (complaints about lack of repairs, for example). In other words, the landlord can evict the tenant for such reasons as the color of hair or for not smiling enough, or believing without proof that the tenant broke some rule or did something wrong.
That is not the case in states or cities where tenants are protected by what is called in Seattle, Washington “just cause” eviction. In landlord-bashing places such as that, a tenant must have done something to violate the terms of the rental agreement or lease to have the tenancy terminated. However, these cities and states are in the minority.
Regardless, make sure you know your local and state landlord-tenant laws.
3. Common Misconception: If the ten ant is pregnant or has young (or even any) children, the tenant cannot be evicted.
Truth: Being pregnant or having young children (or any children) probably will not prevent or delay an eviction. Even so, judges have a tremendous amount of judicial latitude, and could, in the “interest of justice,” delay an eviction in situations where a family’s welfare could be at stake. What that means to a landlord is that when you go to eviction court, have all your documentation ready and in good order regarding the reason you are evicting the tenant.
4. Common Misconception: If there is a good reason why the tenant does not have the rent, the tenant cannot be evicted for nonpayment of rent.
Truth: Inability to pay the rent is not a legal defense, unless the landlord caused the inability. Becoming disabled and unable to work, losing a job, losing a welfare check, or having money stolen does not prevent or delay an eviction.
5. Common Misconception: If the tenant has been trying to move out but can’t find a new place, the eviction hearing judge will not make the tenant get out.
Truth: Inability to find a new place is not a legal defense, and the judge will order the tenant to get out—even if it means that the tenant will become homeless. There is probably an excellent reason that the tenant cannot find a new place to live, such as horrible landlord references, bad or non-existent credit, lying on the rental application or any number of other things that are indicators of the kind of tenant your soon-to-be ex-tenant has attached to his or her personal and rental history.
6. Common Misconception: If the tenant goes to the eviction hearing, the judge will automatically give the tenant more time to move.
Truth: Sometimes, if there is a really sad situation (a health problem, young children), the judge may ask the landlord to give the tenant extra time. And occasionally with landlord-haters, the judge may require the landlord to give extra time. Often, the judge will not require any extra time, in part because the judge knows that the landlord still has to wait another few days (for the Writ of Execution) and then for the sheriff to remove the tenant.
7. Common Misconception: If the ten ant gets or gives a 30-day termination notice, the tenant does not have to pay rent during the 30-day period.
Truth: The tenant’s rent obligation continues for every day the tenant is in the rental unit, through the 30-day period, even though the landlord (or the tenant) has given a termination of tenancy notice. It is understandable that the tenant may need the rent money, in order to move to a new place. But if the tenant does not pay the rent as it comes due, then the landlord can give the tenant a three-day or five-day nonpayment of rent notice (or whatever is required in your state) and evict the tenant, before the 30day period runs out. That will put an eviction on the tenant’s record and make it much more difficult to find a landlord who will rent to him or her.
8. Common Misconception: The land lord may make the tenant pay any unpaid rent at an eviction hearing.
Truth: The only things a landlord can get at an eviction hearing are: 1) a judge’s order (called a judgment) that the tenant must get out at a certain day and time, and 2) a judge’s order that the tenant pay the landlord for the landlord’s court costs, prevailing party fee, and attorney fees (if any). In some states a judge will give a judgment for back rent, but cannot make the tenant pay. In other states if the landlord wants to make the tenant pay any unpaid rent, the landlord will have to sue the tenant in a separate lawsuit, often in Small Claims Court, for a judgment for the rent money.
Where these misconceptions come from is an interesting question. Some of them seem to begin with the assumption that you shouldn’t bother to try to evict certain bad tenants because you will lose anyway. Others show a misunderstanding of how the legal system works. With the misconceptions that seem to show that we should not bother with an eviction, it is as if bad tenants made up these lies and said them often enough that people began to believe them.
Sometimes it happened once or twice, so that became “evidence” that it is always the case. Learn the laws and court procedures of your state and city and visit eviction court a few times. You will find it instructive and interesting.
