What can landlords do when tenants refuse to leave?
Have you ever had a houseguest who overstayed their welcome? While you might find a peaceful way to ask them to leave, sometimes a guest just doesn’t want to leave. This can be a problem, especially for landlords and their tenants. If a landlord can peaceably lock their tenant out, they can avoid going to court. But this option is not always possible. Alternatively, a landlord is left with the option to file in court for an eviction (also known as a suit for a “forcible detainer.” A forcible detainer occurs when the tenant refuses to surrender possession of real property owned by the landlord.
Imagine the three bears rented Goldilocks their house, but then she refused to leave when her lease was up. If the bears want to evict Goldilocks, there are three parts to remember:
1. The landlord must have the right to evict the tenant.
2. The tenant must be: (a) a tenant or subtenant who is choosing, without force, to stay at the property after their lease has been terminated; (b) a tenant at will or a tenant who once had the right to remain on the property but has remained on the property; or (c) a tenant of a person who has entered the property without legal authority, known as a forcible entry.
3. Before a landlord can go to court, they must give a demand for possession, also known as a notice to vacate, to the tenant in writing. This part differs depending on the type of tenant. The minimum time for most tenants is three days, unless the landlord and tenant agreed to a different time in a written lease or agreement. Here are the minimum days based on the three different situations found in part 2 above.
•(a) requires three days minimum
•(b) requires three days minimum
o If the tenant lives in a building where the owner purchased the property at a tax or trustee’s foreclosure sale and the purchaser does not choose to continue the lease, then the landlord must give the tenant thirty days to vacate. This applies only if the tenant is not in default of their lease.
•(c) requires three days minimum
o When the tenant entered by forcible entry, the landlord still has to give the tenant notice, either orally or written, but it can be for immediate eviction.
Once the landlord gives the tenant notice to vacate and they choose not to leave, this gives the landlord the right to file a forcible detainer suit. In this suit, the landlord can even include a suit for unpaid rent at the time of the filing. All eviction cases are brought in a justice court (sometimes known as Justice of the Peace). The court will only look at the issue as to the right of actual possession. If the issue is in regards to a title or “who owns the land”, then the lawsuit must be handled in the district court. Just remember, this suit will not give the landlord immediate possession, as the suit takes at a little time from beginning to completion. If the landlord can do so peaceably, a lock out might be the fastest way to regain the property.
THE TAKEAWAY: A forcible detainer suit will allow the landlord to retain their property from a tenant who refuses to leave. Make sure that if you are in this position to understand what type of tenant you have so you know the correct amount of days to give in the notice to vacate. Most often you will have to give the tenant at least three days to vacate the property and this requirement starts once the notice to vacate is delivered. It is important to stay on top of any property you have to make sure that you don’t have someone who is staying over their lease or has committed forcible entry.
– The Litigation Team
Ethan | Mark