Eviction is a worst-case scenario and the toughest part of doing business for many residential rental property investors. It can consume a lot of a homeowner’s time, energy, and money and is not a pleasant experience for anyone involved.
There are some best practices landlords can follow to make it less likely they’ll end up having to evict a tenant (thorough tenant screening is a big one). But unfortunately, sometimes unpleasant surprises do arise and it becomes necessary to force a tenant to leave a rental unit.
In these cases, a formal eviction process should be carried out to protect both yourself and the investment. As with any process, you need to know how to go about evictions properly to ensure a successful outcome and to avoid causing further damage or risk to you or rental properties.
We’ve come up with the essential guidelines to keep in mind to legally evict a tenant and to help make the eviction process as smooth as possible. Please note, however, that this article is for general informational purposes and is not an official legal process, which may vary depending on your circumstance. We highly recommend consulting an attorney for any and all legal questions regarding evictions.
Understanding your state’s eviction laws
State or local level laws govern the eviction process. These laws lay out the legitimate reasons a landlord can evict a tenant and the specific process a landlord must follow in order to carry out a successful, legal eviction. The laws usually make clear many of the landlord’s and tenant’s rights and responsibilities during the process.
The details vary by state but the eviction process usually involves many similar elements, such as official written notification for the tenant, a court proceeding, and a method for getting the police to assist in actually removing the tenant from the property, if they don’t leave on their own after a court has granted the eviction.
It’s important to know the specific legal requirements for your state, to follow proper procedure, and to know what behavior on your part is not permitted (more on that below).
The more carefully you understand and adhere to the proper eviction procedure, the more likely you are to be successful and to avoid unnecessary — and costly — extended legal battles with your tenant.
Ensure you have legitimate cause to evict
Your state’s landlord-tenant law will list legally justifiable reasons for eviction. For evictions prompted by tenant behavior, legitimate reasons typically include:
- Failure to pay rent on time
- Failure to comply with lawful lease requirements (clauses barring pets or smoking, for instance)
- Causing major property damage
- Engaging in illegal activities on the property
- Health or safety violations
Even if your tenant is paying rent on time and complying with the lease agreements and laws, there are some circumstances in which a landlord can legally require a tenant to leave. These may include:
- End of the lease term
- Sale of the property
- The owner or a family member plans to move into the unit
Some municipalities, especially those with very tight rental markets, may offer more protections for tenants and make it harder for a landlord to make a tenant leave.
That being said, in general, if a tenant has a month-to-month lease, a landlord can end the lease agreement by providing a written 30-day advance notice. This is not an eviction. An eviction process may be needed, however, if the tenant refuses to comply with a legitimate legal notice to vacate the property. At this point, the tenant becomes an “unlawful detainer” and a formal eviction will legally the tenant to vacate the property.
Know the reasons you can’t give for an eviction
It’s also important to know what reasons for eviction are prohibited by law.
The Federal Fair Housing Act prohibits discrimination on the basis of race, color, sex, national origin, religion, familial status (whether a tenant has children, or if a woman is pregnant), and disability. State and local laws may include additional protections, for example covering LGBT tenants, seniors, tenants who have lived in the same rental unit for a long period of time, etc.
It’s also generally illegal to evict a tenant as retaliation against them for exercising their protected rights. For example, if your tenant has made maintenance requests, reported illegal conditions in the apartment to authorities, or has deposited their rent with the court until repairs are made, quickly attempting to evict them is likely to be seen by the court as retaliation.
Even if you have a valid reason to evict a tenant, citing an additional, prohibited reason for eviction or acting in a way that makes it appear you are retaliating or discriminating could seriously complicate and delay the process. It’s important to be sure to respect tenants’ legal rights as you go about eviction in order to achieve your intended outcome as quickly as possible and protect yourself from lawsuits in the process.
Give required notification
States generally require you notify your tenant of your intent to evict before filing an eviction lawsuit with the court. An eviction notice may take several forms depending on the situation and state law.
Some states require that you give the tenant a window to make up late rent payments or remedy a safety violation or other problems before you can proceed with a formal eviction. In this case, your notification generally must state the problem and how long the tenant has to either remedy it or move out, and assert that noncompliance will result in an eviction lawsuit. (This may be called a “cure or quit” notice.)
Some states do not require the landlord to offer time for the tenant to remedy the situation. This can vary not only by state but also depending on the issue involved — late rental payment or criminal activity on the property may be treated differently than a health or safety violation — so be sure to check local laws for specifics. If no remedy period is required, your notice will just state that the tenant must leave by a certain date or face an eviction lawsuit, and cite the reason (this type of eviction notice may be referred to as a “notice to vacate” or a “notice to quit”).
Template legal documents may be available online that will give you an idea of state and local requirements for your notification document. Check state requirements for the delivery of the notification. You may be required to post it on the front door of the unit, deliver it by certified mail, or through a different means.
Be prepared to provide a judge with evidence that your tenant has actually committed whatever you are alleging — failed to pay rent on time, causing serious damage, etc.
Your notifications are part of this evidence and also prove that you followed the required procedures before moving forward with an eviction suit. Having proof that you did this will prevent your tenant from being able to delay the eviction process. Take a photo of the intent-to-evict notice posted on your tenant’s door with the address visible if possible. Send it by certified mail as well if you’d like to be thorough and keep the delivery confirmation. Keep a copy of the notice itself so you can show that you included all the required elements.
In general, it’s wise to put all communication with your tenant in writing. If you have any in-person conversations about problematic behavior, late rent, etc., follow up with some form of written correspondence reiterating what you discussed and keep records.
Know the risk in partial rent payment
In some states, accepting a partial rent payment may take away your legal right to start an eviction proceeding. If you accept a partial payment, you may have to wait until a tenant is late with a full rent payment in order to move forward with an eviction.
You are generally not required to accept a partial rent payment. If your tenant tries to pay a portion of the rent, be sure to return the money or the check to them, along with a written explanation that you cannot accept partial payment (and keep a record of this, of course). You can proceed with the intent-to-evict notification process as if they had made no rent payment.
Don’t do anything outside the legal process
The only legal way to get a tenant to leave your property against their will is by following the eviction process laid out by state law. Assuming a court rules in your favor, your tenant will face a court order requiring them to vacate the property by a specified date or face physical removal by the police.
Anything you do to try to force a tenant to leave earlier is likely to be illegal. Generally, it is illegal for a landlord to do any of the following:
- Change the locks when a tenant is away
- Shut off the utilities
- Remove a tenant’s belongings
- Physically remove the tenant
- Harass the tenant in any way (verbal harassment or actions that make the rental unit uninhabitable or bothersome to occupy)
Any illegal actions you take to try to carry out the eviction process yourself instead of going through court and police channels are likely to get you into serious legal trouble.
Changing the locks or similar measures could give your tenants legal ammunition to use against you in court to delay the eviction process, and could also result in civil penalties or criminal charges.
Proceed with an eviction lawsuit
You will need to file the lawsuit and likely pay a filing fee to the court. A court date will be set and the court will notify your tenant.
While you wait for the court date, gather as much relevant documentation as you can — the lease agreement, evidence of lease violation, your eviction notice, any other written correspondence, photos of the damage, etc. Review relevant laws so you know your rights and your tenant’s rights and are prepared to answer any questions from the judge.
The Bottom Line
Landlord-tenant interactions can be tense and unpleasant, especially when serious disputes arise, as in an eviction process. It’s easy for emotions to run high when your property is being damaged, when a tenant owes you money, or, in the tenant’s case when they are about to lose their home.
It’s crucial to remain calm and professional in your behavior, even if the tenant does not. Whatever the tenant may have done wrong to warrant an eviction, keep in mind that your residential investment property is their home, so the stakes are very high for them as well.
If this process still sounds stressful, consider another option: professional property management. Working with a great property management company can greatly reduce the likelihood you’ll face the need to evict. Thorough tenant screening helps bring in high-quality tenants and if the need does arise for eviction, they will handle everything on your behalf.
If the need does arise, a quality property management company will ensure smooth, efficient, expert compliance with relevant laws and procedures, reducing your legal risk, ensuring a faster process and shorter vacancy, and keeping your professional reputation intact.