JUST BEFORE AND AFTER THE EVICTION --
HERE’S WHAT EVERY LANDLORD NEEDS TO KNOW
© Copyright 2001-2008 Landlord.com
Eviction is the
strongest weapon in the landlord’s arsenal of enforcement weapons, giving the
ultimate in leverage to ensure compliance with the rental agreement. The tenant
may temporarily take possession while ultimately the owner or landlord retains
the title, ownership and the right of return of possession. When the legal
eviction process is used it can at times leave a nasty mess that needs to be
cleaned up. Not only is it as costly to the landlord as to the tenant even
when it is successful, but it leaves an aftermath that must be dealt with.
This article deals with the minimization of problems and helpful tips for clean
up. We are not talking about issues like minimizing rent losses. For
this see our article “Minimizing
Rent Losses in Evictions.” Nor will we deal with obtaining a
judgment for what your tenant owes over and above what you were awarded in the
dispossession proceeding, which will be the subject of a future article.
Here we will discuss that period of time between the end game of the court
eviction proceeding and the successful re-renting of the unit, and how to use
the time optimally. The key to a successful transition is to move as
quickly and as smoothly as possible, while knowing what you can and can’t do.
For the purpose of discussion we will divide this time frame into three
segments. The first is the period spanning the first indication that
permits you to predict with some certainty, within a week or, the date on which
the sheriff/constable/police eviction will probably take place. This is
usually marked by the entry of the tenant’s default in court if he has failed
to file a response to your petition or complaint, or the setting of a court
trial or hearing date if he has filed a response. The second is the date
on which a peace officer, in enforcement of the judgment, has cleared the
premises of all occupants and given you possession, and a day or two thereafter.
The third is the period running from that point to the point at which you move a
new tenant in.
Today,
unlike not so many years ago, more and more tenants now use the eviction process
(court filing to sheriff eviction) as their “polite” notice to vacate. All
too familiar tenant statements, for example, “I know my rights,” “it’ll
take you 90 Days to get me out” and “my lawyer says I can stay as long as I
pay my rent,” underpin an irresponsible tenant belief that they don’t have
to voluntarily give up possession because you have requested them to move out.
They can wait until the “proper authorities” do so and maybe the landlord
will make a legal mistake, which they could benefit.
Preparing for the Eviction
The first time period is used to prepare for the eviction. Some might call this
the time to dot your "i’s" and cross your "t’s" (see our article “EVICTION
NOTICE AS A FOUNDATION TO A SUCCESSFUL TENANT EVICTION.” A competent
eviction or landlord attorney can estimate, at the point at which the tenant’s
default is entered or the trial date for an answering tenant is set, when his
eviction will take place, to within about a week. If you are handling the
eviction yourself, you can do the same. This time frame is determined by
the procedures of your local court jurisdiction. You will need to know how
long it typically takes to get an eviction judgment entered, to get necessary
paperwork to the enforcement officer, how long it takes the officer to react,
what sort of notice he must give (24, 48, 72 hour or some specific number of days
of time), and any special considerations. For example, in many
jurisdictions, dispossessions are only done on a certain day of the week, and in
these jurisdictions you will know that you will get your property back on a
Thursday, for example.
Can I Show the Unit to Prospective
Tenants?
In any event, this is not generally the time to enter into any firm commitments,
especially about re-renting your anticipated vacancy. There is a great
temptation, especially if the housing market is slow, to get a tenant lined up
to move in on a date you think that the property will be in your hands or set up
contractors and other workmen to go to work to prepare the unit on that date.
This is a very risky business because your tenant, even if he is in default, is
not a statue. There are many things he can do before he is dispossessed to
stop or delay things, and some he can do even afterward. A tenant who has
given notice at his present residence, or a contractor who has foregone other
work in anticipation of your job can become both angry with you and expensive to
you. Moreover, at this stage, you will be unable to show the premises to
best advantage, which means you, will not get optimum rent, even if you can gain
entry to show the place.
While we counsel against trying to re-rent the property before you have
possession of it, good management practice dictates that contacting persons on
your waiting list or apartment listing services (see a list compiled with
hundreds to choose from at “Apartment
and Rental Locator Services” and alerting them that there is a
vacancy coming up is a good idea. The prospects on your waiting list will
have already seen your building and so will be pre-sold. Just be careful
not to get tied down to an early fixed date for possession and never sign a
lease or rental agreement that binds you to a specific move-in date.
Making Contact with the Tenant Who is
“Under Eviction”
Some landlords attempt to enter the premises at this point to get an idea of
what kind of work needs to be done to get the premises ready for the next
tenant. In our experience this is not a very good. Even if you can
gain entry, you risk that the over imaginative tenant will invest any
conversation he has with you with meanings you did not intend, providing him
with talking points if he is going to court, or grist for an eviction defense
mill if he is in default. If you are represented by a lawyer and feel the
need to enter for this purpose, be sure to discuss it with your attorney first.
In any event, be sure that you follow your state’s rules for entry of the
premises to the letter. See our article “The
Landlord’s Right of Access During the Tenancy.” If you are unsure
of the rules, forget about it and think about doing some of the following
things.
Arranging Vendors for Cleanup and
Refurbishment
You may have to do substantial work to get your unit into a condition to rent.
Rarely, but it does happen, a tenant will leave the unit clean and undamaged. By
evicting you are regaining the property under the worst possible circumstances
it’s short of a gas explosion. It is only the inexperienced that think
the tenant you evict is going to leave the unit broom clean and ready for
occupancy. While it is not a good idea to make firm commitments with
outside workers at this stage, there is nothing wrong and it is good management
practice with contacting and alerting them about the general time frame during
which you will need them and confirm their availability. In other words,
instead of calling and saying “I will need you on May 18 to clean the
apartment,” you would say “I will need you between May 18 and May 25 to
clean the apartment, will you be available?” Now, if they tell you they
will be visiting Disney World that week, you know you need to call someone else.
The idea is to get someone lined up that you can call when you need him without
loss of time. In the military this is called a warning order, it is an
alert that something is going to happen in the future, and that the specifics
are on the way. It allows everything to go forward without a hitch when
the time comes, which is critical in a successful recovery from an eviction.
Don’t Forget Transferring Utilities into
Your Name
Utilities are another detail that deserves some attention. Once you have
regained possession you will want to transfer them out of your former tenant’s
name. If you do not have experience, this would be a good time to contact
the utility companies and find out what information they will need to honor your
request to place the utilities in your own name or disconnect them. You might
also want to use the services of an energy comparison service found at
http://www.landlord.com/energy_guide.htm.
Keep Good Records
Keep careful track of all expenses that arise in your eviction proceeding.
These are probably not recoverable in your eviction proceeding but you might be
able to set them off against the security deposit, or recover them in a later
small claims court action. Keep all source documents, such as invoices,
that will substantiate your costs. You will want to do this with all
subsequent expenses as well.
Receiving the Rental Premises from the
Sheriff
After the eviction judgment has been entered and the necessary papers have been
issued and delivered so as to put the sheriff, marshal, constable, or other
peace officer in motion to return the property to you, you will need to make
necessary arrangements to meet the officer to receive return of possession of
the property. You must make it your business to contact the appropriate
office and find out exactly what the procedure is. If you have engaged an
attorney or eviction service they will be able to help you.
Unless the tenant physically hands you the keys and moves out all of his
possessions, do not omit the step of having a peace officer formally return
possession of the property to you, even if you think the tenant has skipped.
Follow the procedures of the officer’s department precisely, and keep all the
paperwork he gives you. It is this that proves that the tenants right to
possession has been legally ended and will enable you to have the tenant
physically removed or excluded if he attempts to return.
The officer assigned to enforce your judgment for possession will walk through
the property and remove all persons, but depending upon the jurisdiction, not
the personal property remaining. He will not break into the property or
pick the locks. For this reason, you should arrange to have a locksmith
with you for the eviction appointment. Don’t jump the gun and change the
locks without the permission of the law enforcement officer. The locksmith will
be able not only to change all the locks immediately, which is a very prudent
idea, but also he will be able to pick the existing locks if your keys no longer
work. Often tenants who are being evicted will re-key or change existing
locks in an attempt to deny the landlord entry. If you do not have a
locksmith present and the locks have been changed, you may have to make a new
eviction appointment, or worse, obtain a new writ, losing time. Even if
your key still works, the tenant will have a key to the existing locks and can
return and enter at will. Head this off with a locksmith. You may also
consider using the locksmith to pick the lock so access may be obtained and then
(if a number of locks are involved) take the locks off yourself, take them down
to your local locksmith and have him re-key all of them to one key.
The Eviction Appointment and the
Importance of Bringing a Camera
Go to the eviction appointment equipped with a camera. As soon as the
formality of the return of possession has been accomplished, start making
pictures. Photograph any contents the tenant has left behind and any
damage you can see. You cannot have too many photos. Be especially
on the look out for sabotage. Tenants who are being evicted may try to
punish you by intentionally damaging the premises. Make your inspection
thorough and take your time. If you must sue for damage later you do not
want the tenant credibly claiming that the damage must have occurred sometime
between the eviction appointment and the time you made your photos.
Polaroids are probably the best medium, as you can view the results immediately
and if they are not satisfactory, try again. Next best are videos or
digital cameras. Use these only if you have some reasonably convenient
means to make prints, however, in case you need to present them in court.
Use roll film cameras only if you are a skilled photographer. You cannot
judge the results until you get the pictures back from the photo finisher.
It is also a good idea to do an inventory of property left behind by the tenant
as well. Bring a witness if you intend to do this. A witness is
essential to attest that your inventory is correct. An employee is best,
but if you do not have employees, any adult who understands that his testimony
may later be required to verify the inventory will do. Have this person
sign the inventory when it is completed and, as long as he is present, point out
and list the damage and have him sign that as well.
Ideally, all of the things we have mentioned should be done immediately after
the formal transfer of possession of the rental unit to you. If they
cannot all be done at once, they certainly should be done within a day.
Perfecting Possession
A turning point has been reached. For the first time the date on which you
can actually move a new tenant into the property is largely within your control.
Also, the really intense activity will start.
Gaining possession of a thing can be viewed as making it increasingly difficult
for others to take possession of it. The easier it is for someone to take
something from you, the less you can be said to have possession of it. In
most jurisdictions there are ways, albeit not often used, whereby the tenant can
be placed back in possession of the rental unit after the lock out. It is,
therefore, important to make it increasingly difficult to turn the clock back.
For example, suppose you took your judgment by default because the tenant failed
to appear at the eviction hearing. Later he shows up with a hard luck
story about how he was out of town on business, got stuck with car trouble, and
asks the judge for a new opportunity for a trial. A judge might grant this
request, and if practicable, order that he be placed back into possession of the
rental unit pending the new trial. The more difficult it is to put the tenant back
into possession, the less inclined a judge will be to do it, even if a new trial
is granted. Since possession of the unit is the point, it stands to reason
that you should make it as difficult as possible to put the tenant back, even on
a temporary basis. Besides, even if this nightmare scenario does not
occur, the sooner you get through this the sooner your rent flow will restart.
Handling the Tenant’s Personal Property
--
Follow Your State’s Laws
All personal property the tenant has left behind should be removed from the
rental unit immediately, if at all possible. Carefully follow the rules
for dealing with abandoned property that prevail in your jurisdiction.
These rules will tell you when you must turn the property back to the tenant,
and when you are obligated to turn it over to third parties, such as finance or
rental companies. In any event, store the property and safeguard it with
as much care as you would take with your own. Some jurisdictions provide
special remedies for a landlord against the property of a tenant if he is in
default in payment of rent. If you are unaware of the rules in your
jurisdiction, you need some competent legal advice. The penalties for
dealing wrongfully with the tenant’s property can be severe, and the advice
you receive will remain useful in the future, both of which justify paying a
modest fee for a definitive opinion. Store the property in the rental unit
only if you have no other choice, and certainly move to dispose of it as soon as
the law allows.
Now’s the Time to Request Definite Dates
for Vendors
Workmen should now be scheduled as soon as possible. If you have followed
our advice so far, you already will have alerted your preferred vendors of the
time frame during which you will need their services. Now call them and
put them to work on the property. Ask the workmen to keep their eyes open
for anything they believe looks like sabotage. Instruct them to provide
detailed invoices for all their work and make sure they will cooperate if it is
necessary for them to appear before a judge to justify their work and charges
for it. You
should keep careful track of all of your expenses, retaining invoices, and
keeping logs of your own work.
Many
landlords do some or all of the work of getting a unit ready to re-rent.
If you do this, keep track of your time. Some judges are skeptical about
awarding compensation for a landlord’s own time, but there is no reason not to
claim it. It should be kept reasonable, however. Remember, if you
are a Senior Programmer, the reasonable hourly rate for cleaning an apartment is
not the hourly rate of a Senior Programmer cleaning the apartment. You may
claim only the reasonable value of the work.
Deal with the utilities early on. You do not want to leave any utilities
in the tenant’s name. Similarly, if someone on your waiting list has
expressed interest in moving in, contact him with the date on which the unit is
going to be ready and get him signed up.
If you do not have someone lined up from a waiting list, place and run the ad
you prepared while you were waiting for possession and arrange for a showing
when the workmen are done. You are under a legal duty not to run up your
damages, but in any event you are better off getting the unit re-rented and the
rent flowing again.
The Landlord “Wins,” Now Move on to
the New Tenant’s Needs and Collection of the Judgment from the Former Tenant
Once the unit is re-rented you have completed your recovery from the eviction in
all respects but one. Now is the time to prepare a thorough accounting of
all deductions from the tenant’s security deposit, and to start collection of
any balance due. Prepare your accounting and send it out within the rules
set by the law of your state. If your state has no such rules, send it
within a couple of weeks of the eviction to the tenant’s last known address.
Back up your deductions with copies of invoices and repair logs. See our
article
on the security deposit for a thorough discussion of this process.
Because 99% of the evicted tenant’s security deposit does not cover rent loss,
eviction costs, damages to the premises, etc., you will need to initiate your
own collection efforts or hire an outside collection agency to do so. The court
judgment you have obtained is picked up by the major credit reporting agencies
and places the derogatory information on the tenant’s credit file.
Turning a Negative into a Positive
The keys to a successful recovery from an eviction are to plan carefully and
move promptly, change your position and cement your right of possession
immediately, re-rent the property to a qualified prospect as soon as the market
will permit and hire a collection agency to recover the money amounts owed.
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