Your commercial tenant did not pay rent. You have heard that things are not going very well for them, but now it shows. As a property manager, it is your duty and obligation to resolve the issue as quickly as possible. When the tenant has not paid by the due date, you have effectively breached the lease and you have the right to evict the tenant from the property. An eviction lawsuit, commonly called an unlawful detainer action, is a fairly simple legal process. The important thing for property managers to know is that the steps involved in this process are critical and must be followed to the letter. A real estate attorney representing both parties in the action is common. If your property manager has followed the law, given proper notice, and has a detailed file of all correspondence between the tenant and the tenant’s business, the unlawful detainer action should go smoothly and the landlord or owner should prevail. .
The first step is to solve the rent payment problem if possible
If possible, the property manager should make every effort to get the tenant to make rent payments and bring their lease up to date. If this means waiting a few more days for payment, perhaps this would be the best course of action instead of filing a lawsuit. Your individual company’s policies and best practices will dictate this action, but it would be best if all parties resolved before litigation.
Three day notice drafted
If a payment is not made, a ‘three-day notice to pay or vacate’ must be properly prepared and served on the tenant. This notice must be in a specific legal format. A business owner, landlord, or property manager can choose from different types of 3-day notices; 1) specifies the exact amount of rent due; or 2) estimates the amount of rent owed, usually when a tenant pays a percentage rent.
If the lease requires the tenant to pay rent and other separate amounts for triple net charges or CAM, the property manager should obtain appropriate advice as to whether or not two separate and distinct notices are required. For example, if the property manager or landlord accepts an overpayment of rent because they miscalculated and the tenant overpaid the estimated rents and CAM charges, this can lead to a tenant victory in the withholding action. illegal. This would possibly also entitle the tenant to attorney fees. It is essential to be correct in this step.
The Three-Day Notice Must Be Properly and Lawfully Served
The tenant is deemed served when the three-day notice is served in person, or a responsible person at the place of business on the premises is served in person. In the event no one is available, the landlord or property manager may affix the notice to the front door of the business premises and, at the same time, send a copy of the three-day notice by certified mail, return receipt requested. receipt. The landlord or property manager must then prepare a ‘proof of service’ in the proper format that states in relevant part that the ‘three-day notice’ was served on the tenant, or describes the method of delivery.
The property manager or landlord has a three-day waiting period for the service to take effect
After successfully serving the three-day notice, a three-day waiting period begins the next business day. If the third day falls on a weekend or holiday, the three-day waiting period is extended to the next business day.
If the tenant chooses to pay all rent due at this time or corrects any outstanding violation of the terms of the lease, the eviction process ceases. If the tenant makes a partial payment, the landlord or property manager may accept the partial payment, but must notify the tenant that they are not giving up their rights to proceed with an eviction.
In the event that the tenant has violated the lease through some criminal act or conduct, then the eviction process continues.
At the end of the three-day waiting period, the landlord or property manager may continue to file and serve a complaint and citation.
Prepare and serve citations and complaints
In the event that the tenant has not cured their outstanding rental violation, or has not cured any other violation that they have been notified of, then the landlord or property manager may proceed to file and serve the citation and tenant complaint. A third party not involved in the action, usually a registered process server, may be hired for a fee to serve the documents on the tenant. The Summons, Complaint, and Proof of Service must be filed with the Clerk of Court’s office along with a copy of the lease, and the property is then served with a three-day notice and your Proof of Service.
Technical errors can cause delays
If the landlord or property manager has undertaken this process on their own, there is a possibility that they have made a technical error in the processing, preparation, notification and filing of these documents. There are several technical areas of the law that must be followed or will result in substantial delays if they are not. A tenant who hires an attorney will likely find these technical errors, if the court does not find the errors. This is likely to result in delays, which means money for the property owner. The best course of action in these situations is to hire an eviction attorney to help prevent delays and additional costs to the landlord.
Court proceedings require all parties to appear before a judge
If the tenant does not contest the eviction
A properly notified tenant has five days to oppose the eviction. If the substituted service was used, the tenant would have fifteen days to file a response to the action. If the tenant does not object to the eviction, the landlord or property manager will request a default judgment for possession of the property. This will most likely be granted and the case will be referred to the sheriff’s office for tenant lockout (see below).
If the tenant contests the eviction
In the event that the tenant hires an attorney and contests the eviction, things will take a little longer. The tenant will be given more time to prepare and there will be a period of approximately thirty days in which a trial will be set. If the landlord wins, the tenant will have to pay rent and other losses, likely including attorneys’ fees. If the tenant wins, the landlord may have to pay attorneys’ fees. In this situation, a property manager really needs to be represented by an attorney.
The Landlord or Property Manager has the Right to Block the Tenant
Assuming the landlord wins, the county sheriff will post a ‘Five Day Notice to Quit’ on the tenant’s door or business entrance. On the sixth day, the bailiff meets with the owner or property manager at the property. The landlord or property manager then receives a possession receipt for the property. If the tenant is still there when the bailiff arrives, the bailiff will physically remove them. The landlord or property manager will now have a locksmith come and change the locks to keep the tenant out.
Notice to Claim Property
If the tenant leaves personal property, there are state statutes that deal with this specific issue. The landlord or property manager must give the tenant fifteen days after the closing period to reclaim any possession of the property, or if the tenant left before the closing, eighteen (18) days after the mailing of the “notice of belief of abandonment” to the tenant’s last known address. The notice must describe the property specifically so that the tenant can identify it, and the notice must also describe storage costs. A prudent practice for a landlord or property manager would be to photograph and search all tenants’ belongings so that there is no subsequent dispute.
It is not legal for a landlord or property manager to hold a tenant’s personal property as security for payment of money awarded by a court judgment.
Unclaimed property alienated or sold
At the end of the fifteen day waiting period, the landlord or property manager may dispose of the tenant’s personal property if it is worth less than $750 or $1.00 per square foot, whichever is greater. If the property is worth more, the landlord or property manager must auction it off through a public sale held after a properly posted notice with the proceeds given to the county, less expenses.
conclusion
Although this article has briefly referred to this process, it should be seen that it is not a simple process, but a process that must be taken seriously and professionally. It is always a good practice to have an eviction attorney help the landlord and/or property manager through this process.