Christmas Countdown & Court Deadlines

Today is Thursday, November 19; you have 36 shopping days left until Christmas.  If you have been served a home Foreclosure Summons, you have even fewer days than that to respond, and if you have been served a Three-Day Notice to Pay or Quit at your rental unit, you have even less time. Once you receive a Foreclosure Summons, you only have 20 days to file a response or you could be defaulted in the case.  Note:  those are 20 calendar days as the crow flies, not around weekends and holidays.  The clock is ticking through Christmas, Chanukah, Kwanzaa, and Festivus. By contrast, Landlord-Tenant Law works off the courthouse calendar, not Wal-Mart hours.  Landlord notices come in increments of less than ten days.  Because that is such a short amount of time, the court does not count holidays or weekends to allow the tenant time to get things done.  Plus it is harder for a tenant to pay a landlord on holidays and weekends when banks are closed.  Thus in renter eviction, holidays and weekends do not count in notices. Regardless of how many shopping days you have left, if you received a Foreclosure Summons or Three-Day Notice, the clock […] Read More

My Favorite Landlord

My favorite landlord to oppose is the one who locks out their tenant—I love the smell of bad landlords in the morning! There is a proper way to do tenant eviction, and then there are a lot of improper tenant eviction techniques, like locking out the tenant or shutting off the water, heat, electricity.  Some landlords get creative in their self-help eviction…but the law is not on their side. The landlord can be liable for damages or 3 months’ rent (whichever is greater) for improper eviction.  Renters in possession have rights…even if they have not paid the rent.  If you infringe on those rights, it could be you who gets billed. Tenant eviction is a Summary Procedure, meaning it takes a shorter time than a regular lawsuit.  While a regular lawsuit gives a homeowner 20 days to answer, a renter only has 5 days.  Do not try to speed up the process by changing the locks or cutting off the utilities.  And let the sheriff’s deputy do his job in serving the eviction notice. Know and follow the proper procedure for tenant eviction; they are available free online at http://www.rustylaw.com/wp-content/uploads/2011/10/Evictions.pdf . You can also read the entire Landlord/Tenant statute at […] Read More

Time to Grow Up

How do you get your grown children out of your house?  Typically when they get served they leave. So you raised your baby, sent him off to college, and now he is back and will not move out of your house.  With some offspring, that time to grow up is more difficult than with others.  With some, you have to get the law involved. Action for Unlawful Detainer & Lawful Entry is a court order that says you have the right of possession to your real property, and it is a legal action to evict an occupier who has no lawful right of possession, but who nonetheless has settled on your premises. Once your big bundle of joy has outgrown his welcome, filing for Unlawful Detainer asks the court to give you back possession of your property.  It gives your cherished offspring a legal invitation to leave the nest. For your hatchling with a failure to launch, Action for Unlawful Detainer & Lawful Entry could be the nudge he needs.  Seek competent legal counsel to discuss the details of your situation and plan a resolution everyone can live with. Read More

Tenant Eviction

Tenant eviction is supposed to be streamlined—do not complicate it by violating your tenant’s rights. Tenant eviction is a Summary Procedure, meaning it takes a shorter time than a regular lawsuit.  While a regular lawsuit gives a homeowner 20 days to answer, a renter only has 5 days.  Do not try to speed up the process by changing the locks or cutting off the utilities.  And let the sheriff’s deputy do his job in serving the eviction notice. I love the smell of bad landlords in the morning.  The landlord can be liable for damages or 3 months’ rent (whichever is greater) for improper eviction.  Renters in possession have rights…even if they have not paid the rent.  If you infringe on those rights, it could be you who gets billed. Know and follow the proper procedure for tenant eviction; they are available free online at http://www.rustylaw.com/wp-content/uploads/2011/10/Evictions.pdf . You can also read the entire Landlord/Tenant statute at http://www.rustylaw.com/wp-content/uploads/2011/10/Chapter83.pdf . Read More

Summary Process of Tenant Eviction

Tenant Eviction is like watching television shows on Netflix—you get to skip the commercials.  While a foreclosure summons gives a homeowner 20 days to answer, a renter only has 5 days.  The law provides for summary process regarding tenant eviction, meaning it takes a shorter time than a normal lawsuit. As a landlord, you have to follow proper eviction procedure or it might not happen and you could lose more than rent.  If rent is due on Sunday and not paid, then on Monday you can give a Three Day Notice to pay or quit.  You do not count the day on which you give it, thus the renter has until Thursday to pay you.  If rent is not paid, then on Friday you can file a Complaint for Possession.  The Complaint has to be served by a sheriff’s deputy or other person authorized by the sheriff’s department (NOT the landlord).  Once the Complaint is served, if the tenant does not respond in five days, then you can get a Default Judgment and a Writ of Possession.  You have to wait for the court to put you in possession of the property.  Note that Landlord/Tenant Law does not work on […] Read More

Ichabod Crane Gets Schooled on Tenant Eviction

Once upon a time Ichabod Crane owned a nice little cabin overlooking a lake.  It was quiet and small and just the right kind of place to stuff full of books and sit by the fire.  The only problem was, the cabin was not close the school where Ichabod worked.  Old Ich figured he would retire one day to this place, but until then, he wanted a little income from it, just enough to service the mortgage.  So he rented out his cabin to one of his students who was from a rich family and could afford the commute. On the first day of the month, Ichabod rode over to the cabin to collect the rent.  His student met him at the door and said, “Mr. Crane, I did not know that rent was due today.”  The next day Ichabod asked again for the rent.  “I am sorry, Mr. Crane,” said his student, “but the dog ate my rent check.”  The terms of the lease had specified ‘no pets,’ but nevertheless Ichabod told the student he could turn in the payment the next day. By the third day when the student still had not paid his teacher-landlord, Ichabod was not […] Read More

Pay Your Rent

The key to Landlord-Tenant relationships is to pay rent…whether the relationship is a good or bad.  A renter does not have a lot of defenses if rent is not current.  Despite your complaints about the property or what your landlord has done to it, pay your rent. As a bona fide tenant, you should have running water, power, heat, and quiet enjoyment.  But the court cannot hear your complaint about the condition of your rental until rent is paid. Furthermore, rent is not like a mortgage payment.  As a tenant, you do not have a lot of time or defenses when it comes to the payment of rent.  The law provides for summary process regarding tenant eviction.  While a regular lawsuit gives a homeowner 20 days to answer, a renter only has 5 days. Your only defense for non-payment eviction is:  I paid.  The Statute is very explicit:  “I paid” is the only defense.  It is a pay to play process.  (We do not want a gunfight over rent.)  Regardless of how your landlord is behaving, you can pay your rent to the Registry of the Court.  Once your rent is current, then the court can address your problem with […] Read More

Property Managers & Contested Eviction

Accidents happen and sometimes you become a landlord when you did not mean to.  Some accidental landlords deal with their new position by hiring a management company.  That is fine.  Let the management company handle the repairs, collect the rent, deal with the details of keeping the property rented.  The property management company can file tenant eviction paperwork as long as the eviction is uncontested and for possession only. Property managers and contested evictions do not mix effectively.  A property manager may show up to represent an owner, but unless he is the owner’s attorney, he does not have a legal say in what goes on (in which case his cause may not get very far). Tenant eviction is a summary process, meaning it takes a shorter time than a normal lawsuit; however, if the tenant raises a legal defense, then either the property owner has to represent himself or herself in court, or be represented by legal counsel.     Read More

Tenant Eviction for the Accidental Landlord

So you found your dream home but cannot sell your old house and decided to rent it.  Remember:  even accidental landlords have to play by the rules.   That means following the proper procedure for tenant eviction. If rent is due on Monday and not paid, then on Tuesday you can issue a 3-day notice.  The 3-Day Notice has to say that the tenant owes you rent and how much.  You can post it on the door if your tenant is not home.  If nothing happens by Friday, you can terminate the lease and file for eviction. Note that if you want to file for back rent, that is a separate count on the lawsuit, and the process takes longer than filing for a Writ of Possession. While tenant eviction is a Summary Procedure, meaning it takes a shorter time than a normal lawsuit, the law is structured not to allow for self-help eviction.  Do not try to speed up the process by changing the locks or cutting off the utilities.  And let the sheriff’s deputy do his job in serving the eviction notice. It is okay to be an accidental landlord—you may even like it—but you do not have to […] Read More

Not So Fast! Protecting Tenants at Foreclosure Act

The interesting thing about the Protecting Tenants at Foreclosure Act of 2009 is that the clock does not start until the transfer of title.  In other words, you could lease a place the same day it sold on the courthouse steps, and provided it was a bona fide lease, the new owner would have to honor the terms, or at least give a 90-day notice from the title transfer date. Once the foreclosure sale happens, it is usually about ten days before the transfer of title, leaving a window for a renter to get a raw deal—giving a tenant just enough time to pay his deposit and get comfortable, only to learn the new landlord is kicking him out immediately.  Not so with provisions of this law. The new property owner has to honor the length and the terms of the lease.  Even if the new owner is planning to live there himself, he has to give the tenant in possession at least a 90-day notice from the date of the transfer of title. The key factual issues are (1) valid rental agreement (month-to-month or a lease) and (2) if the new owner is going to live in it.  And […] Read More