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Eviction

Eviction:

In certain circumstances a landlord can evict a tenant from the property prior to the end of the lease term. This is a legal process called Forcible Entry and Detainer, and it can only legally be done with a court order following a civil lawsuit. Regardless of the lease terms, a landlord is not allowed to evict a tenant by turning off the utilities, removing the tenant's property, or changing the locks without first obtaining a court order. It is important for landlords to realize that eviction is a process involves several steps, and it is never quick and simple. If the tenant is being evicted for not paying rent, he or she is entitled to notice and five days to pay. If the eviction is for some other breach of the lease, tenants are entitled to 10 days notice to find other living arrangements. If the tenant remains in the unit after this amount of time, the landlord must file a lawsuit in civil court. At that point the tenant is entitled to a trial to determine whether the lease was violated, and eviction is appropriate. If the judge makes this determination and enters an eviction order, only then can a tenant by physically removed from the property. However, this must always be done by a sheriff. It is illegal for a landlord to physically remove a tenant, even with a court order for eviction.

In certain circumstances a landlord can evict a tenant from the property prior to the end of the lease term. This is a legal process called Forcible Entry and Detainer, and it can only legally be done with a court order following a civil lawsuit. Regardless of the lease terms, a landlord is not allowed to evict a tenant by turning off the utilities, removing the tenant's property, or changing the locks without first obtaining a court order. It is important for landlords to realize that eviction is a process involves several steps, and it is never quick and simple. If the tenant is being evicted for not paying rent, he or she is entitled to notice and five days to pay. If the eviction is for some other breach of the lease, tenants are entitled to 10 days notice to find other living arrangements. If the tenant remains in the unit after this amount of time, the landlord must file a lawsuit in civil court. At that point the tenant is entitled to a trial to determine whether the lease was violated, and eviction is appropriate. If the judge makes this determination and enters an eviction order, only then can a tenant by physically removed from the property. However, this must always be done by a sheriff. It is illegal for a landlord to physically remove a tenant, even with a court order for eviction.

Both landlords and tenants should also be aware that eviction can be a double edged sword, and is not exclusively a tool of the landlord. The law allows tenants who are wrongfully evicted to terminate the lease, sue for damages, regain possession, withold rent, or any combination thereof. As was mentioned above, all leases contain an implied understanding that the tenant has the right to quiet enjoyment of the premises without interference from the landlord, or someone who claims to have a greater ownership interest than the landlord. So if, for instance, the landlord loses the property to foreclosure and the bank seeks to evict the tenant, the tenant can sue for breach.

Another implied condition of all leases is that the landlord maintain the habitability of the property throughout the life of the lease. This is tied to the implied covenant for quiet enjoyment, and means that all landlords must make any necessary repairs and provide services which are essential to the enjoyment of the property. When landlords fail to do this, it is considered a "constructive eviction", and the tenant then has the legal option of terminating the lease and suing for damages. However, before doing so, a tenant must notify the landlord of the conditions and give the landlord a fair opportunity to remedy the situation. Some jurisdictions allow tenants subjected to constructive eviction to remain on the property and withhold rent, while others require that a tenant vacate the premises before bring a lawsuit. Regardless of the jurisdictions, a tenant should always review the local landlord and tenant laws, and consult an attorney before withholding rent or bringing suit, as it can be a risky tactic if done improperly.

Landlord & Tenant Law

The relationship between a landlord and tenant is a contractual one, regardless of whether the two actually sign a written lease. This means that both the landlord and tenant have rights and responsibilities under their contract, as well as under certain state and federal laws. The laws governing those rights can vary greatly depending on what city you live in, as well as other circumstances such as the type of dwelling. For instance, state and federal law have specific rules governing mobile home leases, and leases for federally subsidized (Section 8) housing. That said, all leases for the use of living space have certain implied guarantees for both the landlord and tenant. Among these are:

If you are a landlord, you must:

  • Not discriminate in the rental of property based on race, color, creed, ancestry, or sex.
  • Ensure that the property is clean and habitable at the time the tenant moves in.
  • Make all necessary repairs to the property at their expense.
  • Make sure the property meets all applicable fire, health, and building codes.
  • Give reasonable notice to the tenant before entering the property.

If you are a tenant, you must:

  • Pay the rent and all utility bills on time.
  • Keep the property clean, and pay for major damage that is not normal wear and tear.
  • Not make major alterations to the property without the landlord's approval.
  • Give advanced notice to the landlord if you intend to not renew your lease.

Landlord and tenant law provides default rules for the length of leases and the notice required to end them. Unless the parties specifically agree otherwise, a tenancy for a term of years will end automatically one year after it begins, and no notice is required to terminate it. Similarly, a tenancy at will exists and continues as long as both parties want it to, and also requires no notice to terminate. A periodic tenancy, on the other hand, technically lasts for only the specified time (month to month, year to year, etc.), but automatically renews at the end of each period, provided neither the landlord or tenant expressly terminate it. In order to terminate a periodic lease, a landlord or tenant must give written notice by the last day of the month (or year, if it is a year to year lease), one period ahead of time.

Security deposit:

Often landlords will require tenants to pay a security deposit at the beginning of the term to insure against any potential damage to the property or unpaid rent. Technically there is no limit on the amount a landlord may charge for this deposit, though it is typically around 1 month's rent. If the landlord has to use any of the security deposit to pay for repairs or cover unpaid rent, he must account for these expenses with an itemized list and paid receipts within 30 days. If the tenant cleaned the apartment before moving out, does not owe any back rent and did not cause any damage to the unit, the landlord must return the full amount of the security deposit within 45 days. In addition, if the apartment is in a building with 25 or more units, the landlord must pay interest on the security deposit every 12 months from the time it was collected.

By A www.autson.com