Ultimate Guide to Evictions
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What is an Eviction?
An eviction is the physical removal of a tenant and his possessions from his rented home or apartment. Commercial tenants are also subject to eviction. Evictions usually commence when a lease ends and the tenant refuses to move. Other ways in which an eviction proceeding may begin is if the tenant fails to pay rent and the landlord orders the tenant to vacate the premises, or if a tenant fails to abide by rules within the lease agreement. An example of this would be if a tenant brings home a dog and the lease agreement specifically states that no pets are permitted.
State laws set out very detailed, and often different, requirements to end a tenancy. Different termination notices are required for different types of situations, and each state typically has its own procedures as to how termination notices are given and eviction document are delivered.
Types of Evictions
There are three basic types of eviction notices, one of which must be provided to the tenant depending on the circumstances. The notice requirements for each typically vary from state to state.
- Pay or Quit: A pay or quit notice usually occurs when a tenant has failed to pay rent by the specified period designated in the lease agreement. This notice means that the tenant must either pay the rent owed or leave the property. Typically a tenant has five days, including weekends, but not holidays, to respond to the request. If there is no response, the landlord will be awarded a default judgment and the eviction will be granted.
- Cure or Quit: A cure or quit notice means that the tenant has breached the lease in a way other than through nonpayment. The tenant must fix the breach somehow or leave. Tenant usually has three days, including weekends, but excluding holidays, to respond or the landlord will be awarded a default judgment and the eviction process will commence.
- Unconditional Quit: An unconditional quit occurs when the tenant is ordered to vacate the premises with no opportunity to “cure” the issue. This is the harshest of all eviction types and in most states are only permitted when the tenant has done any of the following:
- Repeatedly violated a significant lease or rental agreement clause;
- Been late with the rent on more than one occasion;
- Seriously damaged the premises; or,
- Engaged in illegal activity, such as drug dealing, on the premises.
What is Termination Without Cause?
Terminations of a lease without cause may occur when a landlord uses a 30-day or 60-day Notice to Vacate to end a month-to-month tenancy even if the tenant has done nothing wrong. Depending on whether the tenant lives in a rent controlled apartment, a notice for termination without cause my not be a legally recognized reason for eviction.
Defenses to Eviction
A tenant may have a defense to the eviction proceedings against them. There are number of defenses that a tenant may raise, including:
- Warranty of Habitability: The warranty of habitability is a warranty included in every lease agreement, even if never expressly stated. It is the right of a tenant to live in a property that is habitable for living. For example, if the unit is filled with rodents, has toxic mold, does not have hot water or heat, lead paint, or there is no electricity, then the apartment will likely be deemed uninhabitable. A landlord is responsible for keeping the premises safe and livable at all times.
- Discrimination: Discrimination occurs when a landlord or owner unlawfully evicts a tenant based on race, gender, religion, color, national origin, or family statute. The Fair Housing Act prohibits any discrimination in housing based on these factors. Violations of this nature can be reported to the U.S. Department of Housing and Urban Development or HUD.
- Retaliation: A retaliatory eviction occurs when a landlord or owner evicts a tenant as punishment and in response to a tenant taking legal action against the landlord or owner. These actions include demanding repairs, calling building inspectors, or suing the landlord or owner for a different matter.
- Covenant of Quiet Enjoyment: A breach of the covenant of quiet enjoyment occurs when a landlord or owner, either by action or inaction, prevents the tenant from fully using or enjoying the premises they are entitled to by the terms of the lease agreement. This includes if the landlord or owner trespasses onto the tenant’s rented space without permission or failing to take actions against criminal activity and is aware of the activity.
- Waiver of Notice: Waiver of notice occurs when a landlord or owner voids the written notice or lawsuit given to the tenant. An example of this occurs when a landlord or owner, after notice has been provided to the tenant, tells the tenant that the tenant may be permitted to stay if they pay the rent late. Additionally, if a landlord or owner accepts rent after the eviction process has commenced, the landlord or owner may have waived the eviction process and reaccepted the tenant.
- Laches: Laches is a legal term where a landlord or owner is barred from bringing a claim for eviction if the landlord or owner delayed in bringing the claim against the tenant for a significant period of time. It stems from the theory that one may not “slumber” on their rights. An example of this occurs where a landlord or owner seeks the eviction of a tenant for rent unpaid a year prior.
Aside from the above defenses that may be raised, wrongful evictions are also illegal. Self-help evictions occur when a landlord or owner changes the lock to a tenant’s premises thereby preventing them from entering. Additionally, a landlord or owner may not move a tenant’s property out onto the sidewalk. An eviction process must be started at the local court and a landlord or owner must provide the tenant with notice of the proceeding.
What is a Constructive Eviction?
A constructive eviction is found when a landlord or owner acts to keep a tenant from continuing to live in a rental unit. The landlord or owner does not correct or terminate an issue on the premises and this issue impedes a tenant’s use and enjoyment of the leased premises. If this occurs, a tenant may abandon the premises with no obligation to pay further rent to the landlord or owner.
Constructive eviction can only occur if a landlord or owner has been provided with written notice of the issue with the premises, the landlord has adequate time to cure the issue, and the landlord fails to take care of the problem. Constructive evictions can range from physically preventing a tenant from entering the premises or another issue that make the premises unlivable.
Examples of this include the following:
- Changing the locks so that the tenant cannot enter
- Blocking the door or driveway to access
- Turning off heat, electricity, or water
- A leaky roof that puts the tenant in danger
- Landlord treatment of the tenant is intolerable.
To prove a constructive eviction, the tenant must show the following:
- Landlord was provided with notice of the conditions involved
- The conditions were so severe that the tenant was forced to leave for health or safety reasons
- The tenant moved out of the premises. This is an important and crucial aspect of bringing a constructive eviction claim. If the tenant still inhabits the premises, a constructive eviction claim will fail.
Difference Between Commercial and Residential Evictions
In residential evictions, tenants are protected by state and federal statutes. These statutes protect certain rights of tenants who are living on the premises. Commercial tenants have fewer protections than residential tenants because they are often in a stronger bargaining position than residential tenants.
For example, residential tenants are entitled to right of quiet enjoyment, described above, which is the right to use the premises in any legal way that they desire. In some states, such as California, residential tenants are also entitled to the right to privacy in their homes. Residential tenants are also entitled to the warranty of habitability. Additionally, residential tenants are protected from retaliatory actions by the landlord or owner.
In contrast, commercial tenants are not entitled to the right to habitable property unless it is expressly stated in the terms of the lease agreement. There may be a right of sustainability, however, if there is a crack in the wall of a commercial building, a tenant may be required to fix the crack in the wall of the building they are leasing. Additionally, a commercial tenant may not just stop paying rent. If a business challenges their eviction in court for a breach of lease, the business must maintain rent obligations while they are in possession of the property.
Residential tenants are not liable for the “wear and tear” of property through the ordinary use and enjoyment of the leased premises. However, commercial tenants may be responsible to fully maintain the premises, including wear and tear. Additionally, on residential properties, there are typically caps on the amount and frequency of rent increases, the security deposit, late charges, and on the number of days required for notice to quit. However, the protections afforded residential tenants typically are not provided for commercial tenants unless stated in the lease agreement signed by the parties.
Do I Need an Attorney?
Whether you are a commercial or residential tenant, landlord-tenant law, specifically the area of evictions, can be very complicated. A landlord-tenant attorney can help you identify the law applicable to your situation and aid in your representation and preservation of rights. A landlord-tenant lawyer can also review your lease agreement before you enter into to maintain your rights are being protected and the terms are fair.
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Last Modified: 09-28-2016 10:09 PM PDT
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