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.

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:

Wrongful Evictions

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:

To prove a constructive eviction, the tenant must show the following:

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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