A Landlord’s Right to Evict

Posted on Friday, July 20, 2018

As a landlord, you have the right to screen potential tenants, determine rental agreements, charge rent and collect security deposits. You also have the right to evict unsatisfactory tenants but you must go through proper legal channels.

Eviction laws vary from state to state so check with your attorney for the specifics. But here are some general answers to questions about a landlord's right to evict an unacceptable tenant.

Q. When can a tenant be evicted?

A. If there is a lease, the tenant cannot be evicted unless the lease is violated. If a tenant stays past the rental period, conducts an illegal business on the premises, or defaults on rent payments, you can file a complaint in court.

Q. What if there is no lease?

A. A landlord can generally end the tenancy on a full month's notice, unless the tenant fails to pay rent. In that case, a full month's notice isn't required.

Q. Can a landlord lock a tenant out?

A.  No. When landlords take matters into their own hands by changing the locks or turning off utilities, there can be serious legal consequences.

Q. Must a landlord notify the tenant of termination before starting an eviction?

A. Yes. To successfully evict a tenant, you must give adequate notice of your intention to end the tenancy. Written notice is not always required, but it is advisable. The tenant must be notified in the following instances:

When rent hasn't been paid, you must serve notice to pay or leave.
The tenancy will end either immediately or after a certain amount of notice if a written lease is violated. Regardless what the lease states, it is best to notify the tenant that the lease is being terminated and why.
If the lease is oral, you must generally give a full month's notice to the tenant. However, if the tenant is operating an illegal business, you can start eviction proceedings without prior notice.

Important: Once you notify the tenant, don't accept any rent.

Q. What happens in court?

A.  Be prepared to bring the lease, the notice of termination, correspondence with the tenant, and documentation of the premise's original condition and the current condition. You may also need witnesses. If the tenant doesn't show up on the court date, the judge will sign a warrant of eviction and money judgment. 

 Q. What are a tenant's defenses? 

 A. The tenant may raise any of the following defenses or counterclaims:

Breach of the warranty of habitability. The property must be livable with adequate heat and water, for example.
Retaliation by the landlord.
Unconscionable, illegal or ambiguous provisions in the lease.
Procedural irregularities, such as: inadequate notice, improper service of the notice, or improper completion of the petition and notice of petition.

Following the law to the letter is critical when evicting a tenant. Consult with your attorney for more information about the process to ensure you are successful.

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Disclaimer: The information contained in Dulin, Ward & DeWald’s blog is provided for general educational purposes only and should not be construed as financial or legal advice on any subject matter. Before taking any action based on this information, we strongly encourage you to consult competent legal, accounting or other professional advice about your specific situation. Questions on blog posts may be submitted to your DWD representative.

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