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    3.  » As a Landlord, How Can I Recover the Premises from My Tenant?

As a Landlord, How Can I Recover the Premises from My Tenant?

 

The laws governing the landlord-tenant relationship and leases are complex and they differ, sometimes dramatically, from state to state. In general, the law has evolved to protect the rights and safety of tenants from overzealous landlords, or lessors. A lessor must take care both to honor the terms of the lease, if there is one, and to follow the state’s legal procedures if attempting to terminate the tenancy. A sensible landlord should establish a relationship with an experienced real estate attorney for legal advice through the course of a lease.

Many different scenarios can play out when a lessor ends an association with a tenant. Important factors in choosing a course of action are any lease terms, the tenant’s violation of the lease or the law, and your applicable state and local laws.

Possible ways for a lessor to terminate a landlord-tenant relationship:

  • The landlord could just wait for the lease term to expire.
  • The lease may include a provision allowing the landlord to terminate the lease prematurely for specific reasons or for no reason. Such a provision is informally referred to as a kick-out clause.
  • Sometimes a landlord will negotiate with a tenant for early cancellation of the lease in exchange for money to reimburse the tenant for the value of what he or she is giving up.
  • The lease may contain a clause that the landlord may terminate if the tenant conducts illegal acts on the premises, or state law may also allow for termination for illegal activity.
  • State or local law may allow cancellation of a lease by the lessor if the lessee substantially violates the terms.
  • If the premises have been significantly damaged, as by fire, the lease terms may allow the landlord to terminate.
  • If there is no lease, your state or local law probably provides a vehicle for you to terminate the tenancy, such as by a 30-day written notice.
  • State law may provide a vehicle for termination of a lease for nonpayment of rent or other material breach of the rental agreement. The procedure set forth in the statute may have specific provisions about timing, notice, delivery and options for the tenant to cure the default.
  • If less serious options have failed or the tenant is uncooperative, state law provides the court remedy of eviction, also called forcible detainer, in certain circumstances. Eviction is the legal process of removing the tenant from the property. State eviction laws vary widely, but usually the lessor can file for eviction for nonpayment of rent, holding over beyond the end of the tenancy or other material breach. Often the tenant will have the option to cure the problem and may be able to raise various defenses to the action, such as that the landlord provided uninhabitable premises or failed to provide important repairs. The landlord may be required to have already taken steps such as a formal demand for the rent, a lease termination or a notice to quit before the court action. If eviction is ordered and the tenant does not leave voluntarily by the deadline, most states have procedures for local law enforcement to remove the tenant.
  • Many states provide for summary eviction proceedings, which may be abbreviated or less formal.
  • State or local law may provide other remedies for landlords.

Caution

Landlords must carefully comply with lease terms and with the law. They are not allowed to evict tenants in retaliation for tenants’ asserting rights granted by the lease or by law. Self-help is illegal to some degree in all states, meaning that a landlord cannot force a tenant off the premises by, for example, putting his or her belongs in storage and changing the locks. Self-help outside the law can even result in criminal liability.

In addition, a landlord must be cognizant of federal, state and local anti-discrimination laws that could forbid an illegal lease termination or eviction. Also, a tenant receiving government subsidy of his or her rent may have special legal protections of which the lessor must be aware. Finally, if the tenant files for bankruptcy, the lessor should obtain legal advice about how the bankruptcy affects the lease and any legal proceeding between the parties.

This article is a quick glance at an incredibly complex area of law. Before stepping into the minefield of lease termination and eviction, a landlord is advised to get thorough, skilled legal advice from a seasoned real estate lawyer.

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