The 6 Stages Of Evicting A Tenant

Becoming a landlord is a goal for many people, and for good reason. It can be a solid way to build wealth, in the form of both ongoing ‘passive’ income as well as capital growth over time. The process of sourcing and purchasing a rental property for investment is costly and time consuming, but once a tenant is in place the hard work is done….right?

Well, that is what we would hope of course, and for the most part this is how it works. But, unfortunately, this is not always the case. Despite our most thorough screening, tenants do not always behave as we would like. The main issues tend to be refusal to pay rent, violations of the lease, damaging the property, breaking local noise laws, and causing health and safety hazards.

If you are faced with any of these as a landlord, what options are available to you?

Let’s take a look at how a landlord may deal with issues surrounding payment of rent.

Late Payment Of Rent

The first thing to establish is that late payment of rent is a serious issue. As a landlord, it is not unreasonable to consider this a serious breach of the rental lease. You likely have a mortgage to pay, so not receiving your rent payment will force you to pay from your own funds. In effect, not paying rent is therefore stealing from you.

It is advisable to have a system in place to deal with late payments right from the start. Be clear that any delay in receiving rent payments will Image courtesy of projectcensored.orgautomatically incur a fee. You must insist that this is paid if you want your tenants to take you seriously and respect your contract.

If this doesn’t help, or you are experiencing further breaches in the lease, or even outright refusal from the tenant to pay rent, then eviction may be your only course of action. It is important to be aware of the law surrounding tenant eviction as well as the fact that it can be a time-consuming and expensive process.

It can be daunting to start the legal process, so we have put together the following 6-step guide, which will suggest how to handle tenant eviction in the most fair and efficient way possible. The ideal outcome is of course to receive the rent owed and enforce the lease conditions, and, more often than not, the following steps help to achieve this.

Step 1 – Stay Calm and Start Communication

The first step when rent is not received on time should be a phone call, especially for a first-time offense. Speak calmly ? there is no sense in becoming angry  but let your tenant know that the rent must be paid immediately, and that the late fee must also be included.

This is also a great opportunity to gather information to understand why the rent has not been paid. The following questions will give you an insight into the finances of your tenant, and also indicate if the pattern is likely to repeat.

  • Why were they unable to pay on time?
  • When are they receiving pay next?
  • When were they last paid?
  • Has there been any illness or job loss?

It may be that you need to speak to the tenant about prioritizing their finances and organizing their money around paydays. The ideal outcome at this point is to receive an apology for not paying on time, as well as a promise to pay by a set date along with the late fee.

Image courtesy of EHow.comIf the tenant is not in a position to pay in the next two weeks, and they have a genuine reason (for example illness) then this is a trickier situation to navigate. Try to stay business minded regarding ‘sob stories’, as the rent still needs to be paid, and it is no fun if this has to come from your own pocket.

If you are unable to get hold of the tenant on the phone then make contact along the same lines via email.

If this first, soft step is unsuccessful in prompting a tenant to pay the rent that is due, consider putting together a letter explaining the seriousness of their actions, and the repercussions that eviction will have on them. Let them know that their credit score will be affected, and that you will sue them for the rent due. Be sure that you do not threaten the tenant at all.

Protect yourself by staying calm and acting within the law at all times. You should be aware that eviction rules vary from state to state, but there are actions which are illegal across the whole country. These are things that you should not do under any circumstances:

  • Change the locks on the rental property
  • Remove doors or windows
  • Shut off utilities
  • Touch the tenant’s possessions

You should not even enter the property without the prior consent of the tenant, as this will only cause legal complications further down the line.

If it seems that you are not able to solve the issue in a reasonable manner, there is another option that you can try prior to filing for eviction at court.

Step 2 – Pay The Tenant To Leave

This step is sure to roll a few eyes. Sure, it feels wrong. It feels that you are giving in, and why should you ever have to consider giving your hard-earned cash in exchange for the keys to the property that you own.Image courtesy of WiseGeek.com

I hear you loud and clear! But this option is the equivalent of ripping a bandage from a graze, compared to opting for surgery (which is what going to court can feel like!).

The legal process of tenant eviction is expensive, stressful and time consuming, so paying tenants to leave, in an act known as ‘cash for keys’, could be a better option. These are the steps to doing this effectively:

  • State the terms of the Cash for Keys agreement (eg the property must be empty and clean)
  • Specify the date that the tenant must be ready to exchange (normally 4 days maximum)
  • Give official notice to pay or vacate
  • Meet the tenant at the property to check that it is clean
  • Take somebody with you as a witness / safety precaution
  • If you are satisfied, present a letter detailing the agreement to be signed
  • Once you have both signed and dated the agreement, you hand over the agreed cash amount in exchange for the key.

The amount of cash is up to you, but it is usually around $500, which is far less than the cost of legal eviction.

Step 3 – Hire An Attorney

If ‘cash for keys’ is not for you, or the tenant still refuses, then you will need to begin the legal process for tenant eviction. An attorney is not essential, but it is advisable, as the process can feel like a real battle and become very complicated. A simple mistake with paperwork can cause the balance to shift in the favor of the tenant.

You, or the attorney, will start the process by drawing up the eviction notice.

Step 4 – Deliver Eviction Notice

Image courtesty of AlperLaw.comThe eviction notice should be served in person to the tenant. If they are not at the property, it may be taped to the door, or sent through the mail with a certified return receipt.

The document gives notice to pay outstanding rent (or adhere to other breaches in the tenancy lease) or vacate by a specific date. Details must be clear, with an order to comply with terms. It is advisable to look into the state-specific laws when drawing this up.

Many landlords write a letter accompanying the eviction notice to soften the blow and keep lines of communication open.

At this point, the tenant may decide to pay what is owed, and eviction can be avoided. But if the date passes without action, the eviction must be filed at this point. You or your attorney will gather a copy of the lease, the eviction notice, and a summary of your situation, and these will be filed with the court administrator while you wait for a date to appear in court.

The order to appear in court will be served in person to the tenant.

Step 5 – Appearance In Court 

Prior to appearance in court, all paperwork should be compiled, including communication around the non-payment of rent and the original tenancy Image courtesy of Everything-PR.comapplication. Either you or your attorney will be required to stand up in court to discuss the situation.

Often the tenant doesn’t appear at the hearing, in which case they lose automatically. But if they do, the judge hears both sides and makes a decision. If you lose, that is very bad luck, and is usually due to issues with the paperwork you have produced, or unfavorable behavior on your part through the process.

If you win the case, the tenant will have to pay rent and back rent, the late fees, as well as your court costs. They will also be given a date by which they must vacate the premise. You will be provided with a  ‘Writ of Restitution,’ which affords you with the legal right to remove the tenant.

You will then take the writ to the sheriff and schedule the date to remove the tenant. Unsurprisingly, you will be charged a fee for this.

Step 6 – Remove The Tenant

Once the day arrives, the sheriff will attend the property with you to supervise the ‘removal’ of the tenant from your property. Often, the tenant chooses to leave before the sheriff arrives. You may be left with a houseful of the tenant’s property, or a house in a poor state of repair. But you will have access once again.

So, as you can see, eviction can take months and prove to be very costly. The best outcome is to come to a settlement outside of court if at all possible. The best way to avoid these stresses is to build a robust screening process, but even that is not infallible. Being faced with a non-paying tenant is bad news for a landlord, but by staying calm and following the process, it can be rectified with minimal fuss.

What Landlords Should Know About Adverse Action Notices

Tenant turnover, while something that every landlord deals with at one point or another in their career, can be a pain.

It starts when you get that phone call or written notice from your tenant saying that they will not be renewing their lease with you when it comes time. The reasons are endless, and while you should take note if there is something you could have done differently with that tenant to have encouraged them to extend their stay with you, your real focus should turn to the transition process.

You will need to list your property for rent, receive applications, perform tenant screenings, and choose your next tenant, all while finding that careful balance of speed and accuracy.

Depending on how much notice you received from the outgoing tenant, this could limit the time you have to find that next tenant if you want to reduce the amount of time that your property stands vacant, but that’s never an excuse to simply shrug off certain legal procedures.

It’s a fair assumption that you will be receiving multiple applications for that rental, but no matter how many you receive, you will need to provide an Adverse Action Notice to anyone that you run a background check on and do not accept or for whom you alter the conditions of acceptance based on a background check.

What Is a Adverse Action Notice?

An Adverse Action Notice is a letter that is required by federal law through the FCRA (Fair Credit Reporting Act) which tells someone that they are being denied or conditionally accepted for something (in this case residence) based on the contents of a credit report or background check.

You must provide the letter to any rental applicant on whom you have run a consumer report and intend to either deny or alter the terms of the lease agreement for in order to accept them as your tenant.

What is considered a consumer report?

A consumer report contains information about a person's credit characteristics, character, general reputation, and lifestyle. A report also may include information about someone's rental history, such as information from previous landlords or from public records like housing court or eviction files. To be covered by the FCRA, a report must be prepared by a CRA – a business that assembles such reports for other businesses. The most common type of CRA is the credit bureau. [x]

What are some examples of a consumer report?

  • A credit report
  • A criminal, and/or eviction report prepared by a Consumer Report Agency such as TransUnion, Equifax, or Experian
  • A tenant screening with rental history and/or records attached to it
  • A reference check done by a third party hired by the landlord/property manager (through reference checks performed by the landlord or their direct employee may not be considered a consumer report)

When Would You Need to Supply an Adverse Action Notice?

The Adverse Action Notice is not limited strictly to applicants that you are denying the tenancy to.

While applicants that you have turned down for the rental should receive this notice, you will also be required to provide an Adverse Action Notice to an applicant that you are accepting, but have set additional conditions for that acceptance that you may not have set for other applicants.

A few instances that could require an Adverse Action Notice would be:

  • If you are turning the applicant down for the rental
  • If you are charging a higher deposit due to something found on the screening
  • If you require a co-signer due to something found on the screening

As a rule, if you require anything of one applicant that you may not require of someone that met all of your usual standards, you will need to provide them with this letter to explain why.

In many cases, they will be eligible to receive a copy of their credit report directly from the credit agency that the report has been run through, and part of what you will provide to them will be the contact information so that they may easily do this.

What Goes Into an Adverse Action Notice?

It’s a good practice to have a standard Adverse Action Notice that you will send out to every applicant that needs one. This will help to make sure that you are keeping things fair to each applicant and that you are providing all of the information legally required of you.

While you should always check local and federal laws to make sure that you are providing correct and up-to-date information, a few things to make sure are noted on an Adverse Action Notice can be found here:

  • The landlord/property manager’s name
  • The property that was being applied for
  • The date that the notice is being given
  • The applicant’s name
  • Information about why they are receiving the Adverse Action Notice
  • If they are being denied or if additional conditions may be set for acceptance
  • Contact information for the CRA (such as Trans Union, Experian or Equifax) that the report was run through (including a toll free number for that CRA)
    • An explanation that the applicant has a right to dispute the information with the CRA if they believe they have inaccurate information on file
    • An explanation that the applicant has a right to a free credit report within 60 days
  • A note stating that the the CRA did not make the final decision

What Can You Use and What Can You Not Use For an Adverse Action Notice

You will likely have many pieces of information that you look at during the screening process.

Between the credit report, criminal report, eviction report, references that you follow up on, and any other number of documents you may choose to check, there can be an overload of information.

The fair housing laws dictate what you as a landlord and/or property manager may and may not use to influence your final decision when you are choosing a new tenant. The laws are set up to protect your rental applicants from discrimination.

What you shouldn’t use to turn down a rental applicant:

  • Anything that discriminates against an individual that is part of a protected class – The Fair Housing Act (FHA) prohibits a landlord or property manager from discriminating against an applicant or tenant on the basis of race, color, religion, national origin, sex, disability, and family status. Local laws may add additional groups to this list.  
  • Strictly based on an applicant’s criminal history, without proof that the individual is a danger to others – The US Department of Housing and Urban Development (HUD) released a set of guidelines in early 2016 that said that while individuals with criminal records are not necessarily considered a federally protected class, blanket denial of any applicants for having a criminal record of any kind may lead to discrimination based on race or color.
  • Having a service animal in a no-pet rental – Many landlords have valid concerns over pets being in their rentals, but a service animal is not considered a pet. You may not charge a new tenant more for allowing their service animal to reside with them, nor may you deny their service animal access to the rental. If the pet damages the property, you will be allowed to deduct that from their security deposit at the end of their stay.

What you may use to turn down a rental applicant:

  • Information found in their credit report – You are allowed to set minimum requirements for credit scores, negative tradelines, or anything else found within their credit history.
  • Information found in their criminal report – If your applicant’s criminal report returns with information showing that they may pose a threat to your rental, neighbors, or anyone else, you may turn them down as long as you use the same qualifiers for everyone.
  • Rent versus income ratio – If your applicant does not make enough money at their current employment position to adequately cover the debts they owe and rent every month, they are not a good choice for you. Many landlords require that the applicant make at least three times the monthly rent.
  • Prior evictions – A rental applicant that has been evicted before may not be someone you want to immediately welcome into your rental.
  • Too many people wanting to move in – You are allowed to put reasonable limits on how many people may live in the rental unit as long as those limits don’t cause you to discriminate against families.

In the end, you have a lot of flexibility in what you can use to choose to deny an applicant as long as you are not discriminating against a class protected by the Fair Housing Act.

What Can Happen If You Do Not Provide What is Required?

You will want to make sure that you follow the letter of the law, both federal and local. This may take some extra work, but it’s worth it.

If you miss a step or are found acting contrary to the law, you may open yourself up to a lawsuit, which will cost you in time, money, and stress.

If you lose that lawsuit, you may be on the hook for the tenant’s legal fees as well.

 

What Should an Adverse Action Notice Look Like?

LandlordStation has put together a sample of what your Adverse Action Notice should look like if the report is run through our site. You may also download a copy here.

 

Adverse Action Notice Sample

 

Dear [applicant’s name],

 

This letter is to inform you that your application to rent [insert property address here] has not met the standards that we have set for the rental property. Because of this we are

 

[   ] Denying your application

[   ] Requesting the following additional conditions to be met

 

Additional conditions: ___________________________________________________________________________________________________________________________

 

This descision was made due to the following information found on your consumer report:

_____________________________________________________________________________________________________________________________________________

 

The CRA (Consumer Reporting Agency) that this information was provided by is TransUnion. Their contact information is:

 

2 Baldwin Place, P.O. Box 1000

Chester, PA 19022-20000

1-800-888-4213

www.transunion.com/myoptions

 

In compliance with the Fair Credit Reporting Act, you have a right to obtain a copy of your Consumer Report through the agency from which it was provided within the next sixty (60) days following the date that you receive this letter. You may address a letter requesting this information or call the CRA listed above for this information. Under the Fair Credit Reporting Act you have a right to dispute any information that you believe is erroneous or incomplete. Please note that neither the CRA nor LandlordStation were involved in the final decision regarding your application, nor can they explain why this adverse action was taken.

 

Landlord (print): _____________________________________________ 

Signature: _________________________________________

Date: ________________________________