Ultimate Guide to Evictions

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 What is an Eviction?

An eviction occurs when a tenant and their possession are physically removed from their rented home or apartment. A commercial tenant can also be subject to an eviction.

An eviction usually commences when a lease terminates and the tenant refuses to move out. Other ways in which eviction proceedings may commence include if a tenant fails to pay rent or fails to abide by the rules of the lease agreement and the landlord orders that the tenant must vacate the premises.

An example would be if a tenant brings home a dog when the lease agreement specifically states that no pets are permitted in the residence. State laws provide very detailed, and often different, requirements to terminate a tenancy.

Different termination notices are required for different situations. In addition, each state usually has its own procedures regarding how termination notices must be provided and how the eviction documents must be delivered.

What are the Types of Evictions?

There are three basic types of eviction notices. One of these types of notices are required to be provided to a tenant, depending upon the circumstances.

The notice requirements for each type of eviction vary from state to state, but typically include:

  • Pay or quit;
  • Cure or quit; and
  • Unconditional quit.

A pay or quit notice is typically provided when a tenant has failed to pay rent by the specified period provided in their lease agreement. This type of notice means that a tenant is required to either pay the rent owed or vacate the property.

Usually, a tenant has five days, including weekends, but not holidays, to respond to this type of request. If the tenant does not respond, the landlord will be awarded a default judgment and the eviction will be granted.

A cure or quit notice means that a tenant has breached their lease in a way other than by nonpayment. The tenant is required to fix the breach in some way or to leave.

A tenant usually has three days, including weekends, but excluding holidays, to respond. If the tenant does not respond, the landlord will be awarded a default judgment and the eviction process will commence.

An unconditional quit occurs when a tenant is ordered to vacate the premises with no opportunity to cure the issue. This type of eviction is the harshest.

In most states, this type of eviction is only permitted when a tenant has engaged in one of the following:

  • Repeat violations of 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?

Termination of a lease without cause can occur if a landlord uses a 30 day or a 60 day Notice to Vacate to end a month-to-month tenancy even if a tenant has not done anything wrong. Depending upon whether a tenant resides in a rent controlled apartment, a notice for termination without cause may not be legally recognized as a reason for eviction.

What is a Wrongful Eviction?

A wrongful eviction is an illegal type of eviction. Self-help evictions occur when a landlord or an owner changes the lock on a tenant’s premises which prevents them from entering the property.

In addition, a landlord or owner may not place a tenant’s property out on the sidewalk. The eviction process must be commenced at the local court and a landlord or owner is required to provide the tenant with notice of the proceeding.

What is a Constructive Eviction?

A constructive eviction occurs when an owner or landlord keeps a tenant from continuing to reside in a rental unit. If a landlord or owner does not terminate or correct an issue on the premises and this issue impedes the tenant’s use and enjoyment of the premises, a construction eviction has occurred.

If an owner or landlord engages in this type of behavior, a tenant is permitted to abandon the premises with no obligation to pay further rent to the landlord or owner. A constructive eviction only occurs if:

  • The owner or landlord is provided with written notice of an issue with the residence;
  • The landlord or owner has adequate time to cure the issue; and
  • The owner or landlord fails to correct the issue.

A constructive eviction may range from physically preventing a tenant from entering the premises to other issues that make the premises unlivable, for example:

  • 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; or
  • Landlord treatment of the tenant is intolerable.

To prove a constructive eviction occurred, the tenant is required to show the following:

  • The landlord was provided with notice of the conditions which were involved;
  • The conditions were so severe that the tenant was forced to leave for health or safety reasons; and
  • The tenant moved out of the premises.

It is important to note that moving out of the premises is an important aspect of a constructive eviction claim. If a tenant still inhabits the premises, the constructive eviction claim will fail.

What are the Differences Between Commercial and Residential Evictions?

There are some differences between residential and commercial evictions. A tenant in a residential eviction is protected by state and federal statutes.

These statutes protect certain rights of tenants who are residing on the premises. On the other hand, commercial tenants have fewer protections than residential tenants because they are often in a stronger bargaining position than residential tenants.

For example, a residential tenant is entitled to the right of quiet enjoyment, which is the right to use the premises in any legal way the tenant desires. In certain states, such as California, a residential tenant is also entitled to the right to privacy in their residence.

A residential tenant is also entitled to the warranty of habitability. In addition, a residential tenant is protected from retaliatory actions by the owner or landlord.

In contrast, a commercial tenant is not entitled to the warranty of habitability unless it is expressly stated in the terms of the lease agreement. For example, if there is a crack in the wall of the commercial building, the tenant may be required to fix the crack in the wall of the building.

A commercial tenant is not permitted to just stop paying rent. If a business challenges their eviction in court for a breach of lease, a business is required to maintain their rent obligations while they are in possession of the property.

A residential tenant is not liable for normal wear and tear of the property resulting from the ordinary use and enjoyment of the leased premises. Commercial tenants, however, may be responsible for fully maintaining the premises, including wear and tear.

In addition, with residential properties, there are often caps on the frequency and amount of:

  • Rent increases;
  • Security deposits;
  • Late charges; and
  • The number of days which are required for a notice to quit.

The protections which are provided for residential tenants are usually not provided for commercial tenants unless it is stated in the lease agreement which is signed by the parties.

Do I Need an Attorney?

An eviction can be very complex, whether you are a residential tenant or a commercial tenant. If you have any issues, questions, or concerns with landlord-tenant issues, it may be helpful to consult with a landlord tenant lawyer.

Your lawyer can advise you regarding the laws that apply to your situation as well as how to preserve your rights. If you are considering renting a new residence, your attorney can review your lease agreement before you sign it to ensure that the terms are fair.

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