Follow the Blueprint for Evictions

Posted on Friday, July 06, 2018

You may own a rental property, but you likely know that you can't do whatever you want with it. If you've ever tried to evict a tenant for nonpayment of rent or some other valid reason, you know that it's easier said than done. However, as long you follow the legal guidelines, you should eventually prevail.

Squatters Can Prevail

In ancient times and during various land rushes, property title was determined by possession rather than by deed. These days, that concept may still apply.

Under the adverse possession law, squatters -- people who remain on a property for a continuous number of years -- can acquire legal right to the property under certain conditions.

If you're interested in buying property and find that someone other than the seller or a renter occupies it, look into potential squatter's rights. For example, if the seller says the occupant is a tenant, ask to see the lease. And if the property is unimproved but looks maintained, find out who's been paying for the maintenance.

The laws are complicated and vary from state to state. Generally, possessors must claim to be owners of the land by their conduct and the possession must be noticeable to the owner.

Similar rules also apply to easements, including the right to use land as a driveway or path. Consult with your attorney for more information.

Basic rules: A landlord cannot physically evict a tenant until it has been established in court that this action is justified. 

The first step in the process is to legally terminate the tenancy according to the applicable state laws. The laws vary so check with your attorney but in general, a landlord is required to provide written notice of the termination in a specified manner. If the tenant doesn't move out -- or otherwise resolve the cause of the dispute -- the landlord may proceed with an eviction lawsuit.

Laws for terminating a tenancy differ according to the state and the type of situation. In general, you are required to provide a "pay rent" or "quit notice" that gives a tenant a certain number of days (typically ranging from three to five days) to pay up or move out. Similarly, a "cure notice" may allow the tenant a few days to correct a violation such as a no-pets clause or excessive disturbance. Any such notice must be properly stated and served to the tenant.

If the tenant contests the eviction, the case can drag on for weeks or even months. Any inaccuracies in the eviction papers can add to the delay. Finally, after the landlord obtains a judgment against the tenant, a local sheriff or marshal can be called to evict the parties from the premises. Don't try to take matters into your own hands if physical force is needed.

Evicting a tenant is a sensitive matter which requires patience and strict observance of the rules. It is strongly recommended that landlords seek appropriate legal counsel in the process.

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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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