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What Are Your Rights When a Tenant Will Not Move Out of Your Home?

LANDLORD AND TENANT - 01/11/17

It is a fear that many people have when they decide to go into the rental property business: what happens if someone rents your property and then decides that they do not want to leave? After all, it is your property, right? That is where things get tricky. While you are the owner of the property, they are the residents. Before you do anything at all, you need to know your rights as it pertains to the law.

1. The Laws Differ By State

Laws pertaining to landlord/tenant relations can vary in nature depending on where you live. You should always check with the laws in your state before taking any action. This guide will help you with the basics of your rights and how to handle the situation, but it is not the only thing you should go by. You want to follow the specific laws in your state to ensure you do everything legally.

2. Using Respect to Get Tenants Out

Before you take any legal action, the best place to start is by being fair with the tenants and trying to reason with them. If you are able to get them out of your rental property without going into a lengthy legal procedure, the results are almost always better. You should consider talking to them about the situation to see what is preventing them from leaving and see if you can work out a deal. You catch more flies with honey, or so they say. Use this to your advantage and see what you can work out as a way to diffuse the situation and resolve it, if possible. In the end, this is the easiest way to get them out while also making sure that your property is left in good condition.

While this is the best method, it does not always work and you should be prepared to take further action to take your home back. You do not want the relationship to become tense if you have a good relationship with the tenants. Talk to them about options and try to find a good solution that works for everyone, unless they are failing to pay rent. Keep in mind, however, that you should not take any action or compromise that would affect your rights as a landlord.

3. What Is the First Step If Tenants Will Not Leave Your Home?

No matter what the situation is, before you do anything, you should look at the lease agreement that you have in place. The lease that was signed by both you and the renters can help you determine the best course of action. It can also outline what your options are. You likely have some clauses in there that can determine what action you can take if something occurs, like refusing to move out of the property. If you do not have this kind of language in the lease, then you should turn to the law since it trumps anything in a lease agreement anyway. The law and your lease should go hand in hand. Even if you do have the language in place, you should still look at your local and state laws to determine what you can do in terms of getting them out of the property. Remember that you do have options, but you must do everything legally. While they occupy the home, even if the lease is expired, then you still need to take the right legal steps to get them out. The law and your lease can help you determine what your options are so you can start to work towards removing them from the property.

4. What If There Is No Active Lease?

In most states, when you let someone move into the property without a lease in place, it is considered a tenancy at will. This type of tenancy can be terminated at any time by either the tenant or the landlord. Because there is no lease in place, it can be more difficult to get them out of the property if you have asked them to leave. This type of situation would be governed by your state or local landlord-tenant laws. To determine the best course of action, you will need to refer to the laws specific to your area.

5. What If the Lease Has Expired?

If you do have a lease in place and it has expired but the tenants are not moving out, you can get them out of the property fairly easily. However, if they are continuing to pay rent, then you may want to consider letting them stay there by executing a new lease agreement. The only reason you may want to avoid this is if a rental increase has been proposed and declined by your tenants. If they are refusing to pay a higher rent but are also refusing the leave, then you may need to choose eviction for your method. However, you may also want to talk to them about a timeline of getting out of the home or even raising the rent for them automatically, if it is allowed by your lease. Make sure you only do what is allowed in the lease in these types of situations, as well as the law in your state.

6. What If They Are Not Paying Rent?

One of the most common reasons for landlords wanting to get tenants out of their rental property is because they are no longer paying rent as they agreed to. When tenants stop paying, either because they have no money or they simply have hit a rough spot, they are in violation of their lease, assuming you have one in place. In this type of situation it will be a lot easier to get them out. In most states, if they are failing to pay, this violation of the lease can be used to begin eviction so you can regain control of the property and find new tenants. You do have a valid reason to get them out of the property if they are failing to pay rent, so use your rights to get them out of the house if that is what you want and need.

7. What If They Are Paying Rent?

There may come a time when you simply need someone to move out of your property even though they are paying rent and the lease is active. You may want to renovate the property or even move back in. Unfortunately, in this situation, your options are limited. Unless you have a clause in the lease that allows you to require them to move out early with a notice, you may have to wait until the lease is up. If you have a lease in place that is active and the tenants have not violated it, your only other option is to approach them to see if they would be willing to get out of the property early because of your special situation. If they refuse, you will simply have to wait until the lease is up or they fall behind on rent to get them out of the property.

8. Eviction Notices and Notices to Quit

Before the eviction process, there are different notices you should provide to the tenant according to law. There are two main categories of eviction notices:

  • Eviction notice with cause
  • Eviction notice without cause

Within the eviction notice with cause category, there are three main types.

  • The first type is called a notice to quit to pay rent. This is used when the tenant violates the lease by failing to pay rent and it can be used to remedy a situation prior to it escalating to eviction.
  • The second type is a cure or quit notice when they violate the lease, such as by bringing in a pet that is not allowed or breaking another rule. Both of these provide a short period of time—three to five days depending on your local laws—to remedy the issue before you proceed with the eviction process.
  • The third type within this category is an unconditional quit notice that demands they leave the property immediately without the chance to pay the rent or remedy the situation. This type of notice is generally used when a pattern is created and the tenants continue to violate the lease terms or fail to pay rent. The tenants may still refuse to leave, resulting in you needing to proceed with the eviction process.

The other category of eviction notices is without cause, meaning that you do not have a specific reason for wanting the tenants out of the property. With this notice, generally the laws require that you give a 30-, 60-, or 90-day notice to the tenants before proceeding with eviction. You should check with local laws for the specifics.

9. Forceful Eviction

Sometimes, no matter what you do, the only option that you have is to opt for an eviction. An eviction is easier said than done, though. You will have to spend money to go through the eviction process. There are many steps associated with the eviction process, but it may differ from state to state. In some states, you are required to notify the tenants of a possible eviction and give them the chance to either pay the past due rent or vacate the property within a specific time frame. You cannot simply call them or send them an email to let them know this either. You have to go through the right legal avenues and be able to prove that you gave them notice.

If they have not vacated the property after the set amount of time, you must file with your local courts. This is the actual eviction that you are filing for. However, it is not always automatically granted to you as the homeowner. In some states, you will still have to go to court with the tenant and meet with a judge for a ruling on the case. The judge may or may not rule in your favor depending on the circumstances. However, in most cases, if your tenants have failed to pay, then you are more likely to win. This is no guarantee, however. If you do win the case, the tenants will be given a set amount of time by the judge to get out of the property and take all of their belongings with them.

Even if you are ruled a monetary judgment, in the case of rent not paid, you may never see it. This is often the case with evictions. The ultimate goal is to simply get them out of the property. If they do not get out of the property by the date given to them by the judge, then you can, in many states, get the sheriff to come and physically evict them from the property. This usually results in all of their things ending up on the side of the street and you organizing for a locksmith to come and change the locks. An eviction is not the first choice of many people because it can get ugly, but it is a last resort that will get you results.

10. Read the Situation

Every situation is different, which means that you may want to approach them in different ways. Just like there are different laws in different states that have to do with this subject, there are also different tenants and ways you should approach them. This is a tricky issue, but one that you will have to deal with at some point if you want to regain control of your property. Always follow the state and local laws that pertain to your locale, but also pay attention to the specific situations to help you determine if there are other options you can use in your approach. Doing this can help you save yourself from some heartache as well as save you some money.

If you are facing this issue currently, make sure you always refer to your local laws before taking any action. This is a situation that no one ever wants to deal with, but it is also one that can be very common in the real estate rental industry. Knowing what your options are can help you better prepare for the possibility of it. Once you know it is something that is fairly common and you know how to deal with it, then you can set yourself up for success.

For access to legal agreements that can help protect you and your investments, be sure to view our available documents at LegalNature today. Click here to create your residential lease agreement now.

Staff Writer

LegalNature’s staff writers cover a wide array of topics, ranging from estate planning to business formation. Our writers are all experts in their respective fields.

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