Do you have a tenant that needs to be evicted for non-payment of rent or nuisance matter? We handle all kinds of landlord/tenant matters at the Law Office of Jonathan Bachison. A non-paying tenant can quickly turn into a nightmare. It usually begins with a tenant being late, making promises to pay, not coming through and then avoiding communication with the landlord altogether if not downright hostility. Many landlords have mortgages to pay and simply cannot afford for a tenant to not pay rent on time. There are a few procedures that a landlord can follow to protect themselves.
Nonpayment of Rent
As a policy matter, a landlord should provide a three-day notice to pay rent on the same day that the grace period is over and rent is late. This is assuming that the landlord is not evicting someone from a mobile home park. Then, if the tenant still does not pay, a landlord should not permit late rent payments to go beyond the 15th of the month at the most. If a tenant has not paid by then, it is likely that they are not going to pay for the next month as well. Therefore, to avoid missing out on another month of rent, a landlord should then have an attorney file an unlawful detainer action in the District Court and start the process. The tenant will have three business days to file an answer after being served notice of the lawsuit. If the tenant has not filed an answer by then, the Plaintiff can request that default be entered against the Defendant tenant and also request the Court to issue an order/writ of restitution which typically orders the Sheriff to physically remove the tenant from the property after three calendar days of having been served a copy of the writ/order of restitution.
If the tenant files an answer to the complaint, the attorney should request an immediate occupancy hearing to be held within ten calendar days. At the hearing, the court will determine if the tenant is allowed to stay in the property during the pendency of the case. This determination is typically based on whether or not the tenant has paid rent or not. Sometimes this may require testimony from both parties when the matter is disputed. Filing an answer is a way for a non-paying tenant to delay being removed from the property. If the Court finds that the tenant has not paid rent, the Court will issue an order/writ of restitution at that time. The tenant will then have whatever time the judge indicates, usually this is three days, but can vary depending on the judge.
Some tenants are just “problem” tenants. They either do not get along with neighbors causing other tenants to be unhappy, commit crimes, or do not comply with the requirements of the lease agreement. These can all be a basis for an eviction. Typically, this type of eviction is started with a three day notice to quit or abate the nuisance. The tenant then has three calendar days to comply. When the tenant fails to comply, a lawsuit for unlawful detainer can be commenced. This procedure typically follows the same path as for non-payment of rent. However, in the event that the tenant filed an answer to a complaint for criminal nuisance and the parties attend an immediate occupancy hearing, the court will expect to hear testimony and see evidence from the landlord supporting the claim for nuisance. The tenant will then have an opportunity to respond and provide counter testimony or evidence. The Court will then make a decision as to whether a criminal nuisance is ongoing and the landlord is entitled to immediate possession of the property.
Time Frame and Planning
Regardless of the path to evicting a tenant, this all takes some time to accomplish. I usually estimate it taking at least three weeks to have a bad tenant removed. If the tenant files an answer, it can add on another 10 days. For these reasons, a landlord should not delay past the 15th of the month to start this process. The longer a landlord waits, the greater the loss will become. The goal of my office is to get the bad tenant out as quickly as possible to stop the financial bleeding.
After a tenant is out, the landlord can decide whether it is worth pursuing a judgment against the tenant. Some landlords come to me with several months of nonpaid rent and want the tenant to pay the back rent. There are some reasons why this is a bad idea. After reading this, you might be thinking “what?” Well, keep reading and you will understand why below. First, the landlord should comprehend how filing fee system works because this fee is a cost the landlord will bear upfront. It depends on the amount requested:
$0.01 to $2,000.00 = $75.00 fee
$2,000.00 to $10,000.00 = $185.00 fee
Greater than $10,000.00 = $360.00 fee
Very rarely does an eviction matter involve back rent greater than $10,000.00. This usually only occurs when dealing with commercial properties are very expensive homes. However, for most average residential evictions, the filing fees are either going to be $75.00 or $185.00. If a tenant is broke, it usually is not worth claiming more than $2,000.00 of back rent even when it is owed. This is because every dollar paid towards the eviction is likely money that will not be recovered. A landlord can obtain a judgment for legal fees and back rent, but collecting on the judgment may prove too difficult and not worth the hassle. In any collection matter, the first question that should be asked when deciding whether or not to pursue it is how the Defendant will be able to pay? Remember that if your tenant is not paying already, the tenant probably does not have any money and merely obtaining a judgment saying the tenant owes you money does not put money back into your bank account. Collecting a judgment can be difficult and simply not worth the effort involved. However, this is a call a landlord must decide for themselves.
My office treats collecting a debt as a separate matter from the eviction. That being said, a landlord must understand that the primary goal of an eviction should be removal of a tenant so the landlord can get a new paying tenant under contract and stopping the financial loss.
My office handles eviction matters all throughout Northern Utah. My office has forms and notices a landlord can use to start the process as well. If you have a problem with a tenant and need help, please contact my office and I can help you stop the financial loss and get out of a bad situation. (801) 436-7529