A tenant who is living on a rental property in an “at will” basis is doing so without a lease.
Despite there not being an agreement in place, the moment a landlord or property owner accepts money for rent, that tenant has certain rights that cannot be violated.
Tenants without a lease must still go through the eviction process if they are to be removed from the property.
This means the standard eviction process for your landlord-tenant law must be followed.
A notice of eviction must be presented to the tenant with the proper amount of notice dictated by local law.
This notice may require just 7 days to vacate the premises, but it may be as many as 30 days.
Even though there is no lease in place, the tenant must also be advised that they have the right to contest the eviction if they wish.
What Are Some Common Mistakes That Are Made?
Landlords can get themselves into a lot of trouble by trying to force tenants off of a property without a lease.
It is illegal to shut off utilities or change the locks on a rental property when a tenant is present.
If the locks are changed, the tenant must be provided with copies of the new keys, just as a tenant must provide a landlord with a key copy if the locks are changed by them.
Utilities in the landlord's name cannot be shut off.
Both actions put the landlord or property manager at risk of litigation, even if the tenant has not complied with an eviction notice.
An eviction of an at will tenant cannot begin until the first day that a rental payment is not in place.
If a landlord or property owner accepts a rental payment on March 1 for the entire month, then the notice of eviction cannot be delivered until April 1.
If the tenant pays on March 15 for all of April in this example and that payment is accepted, then eviction proceedings could not begin until May 1.
The only exception to this payment acceptance stipulation is if the conduct of the tenant is in violation of landlord-tenant law.
Remember: at will tenants do not have a lease, so they cannot be in violation of any lease terms.
In general, this means a landlord or property owner can only evict a tenant when they are causing the following issues.
1. Serious damage to the rental property that has not been repaired.
2. Disturbing other tenants or neighbors in a persistent fashion.
3. The creation of health hazards on the property.
A Copy of the Notice to Quit Must Be Delivered
The eviction notice may need to be delivered in person based on local landlord-tenant law.
There may even be the need to have the notice served by a professional service or a sheriff's deputy.
In some instances, however, all a landlord or property owner must do is provide proof of 3 good faith attempts to deliver the notice before being able to mail it.
Whenever an eviction notice is mailed, it should be sent with a certified option.
This will provide proof of delivery.
There should also be a copy of the notice left in a prominent spot at the rental property.
Sliding a copy of the letter underneath the door may not be considered an appropriate delivery method.
Many tenants will leave by the date listed on the notice. If they do not, then a court order must be pursued.
This required filing court papers to have the right to enter the property and claim it, often referred to as an “unlawful detainer notice.”
An eviction cannot take place until a court order is received by the landlord or property owner.
Common Defenses To Expect
Some tenants may present a defense to the court for their eviction.
The most common defenses are in retaliation or because of discrimination.
Documenting all contacts with a tenant and being clear and precise about the need to evict an at will tenant guard against this type of defense.
One common defense that works is that an at will tenant may be refusing to pay for common utilities or rent increase that may not abide by local landlord-tenant laws.
Make sure that your rental property complied with all codes and that all rental increases are permitted by local law to avoid this issue.
Tenants without a lease are still tenants with rights. By making sure the entire eviction process is followed at each step, everyone can be provided with the protections that local laws allow.
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