Follow These Steps To Minimize Stress In Evicting Tenant
- December 15, 2007 | By Michael J. McGee | Litigation
Here are eight steps that landlords and their attorneys should keep in mind.
1. Review the lease agreement closely.
The lease usually covers what type of notice, if any, is required for eviction. The agreement should also reveal whether accelerated rent is available during the eviction, whether any personal guarantees are involved, and whether anyone else must also be served with a copy of the eviction notice.
2. Provide eviction notice to the tenant.
If terms of such notice are not spelled out in the agreement, state law requires the landlord to give three days notice. This can be done by certified mail, or by posting the notice in a prominent location at the leased space.
3. File a complaint for eviction with the right court.
Such a complaint should include an allegation that the tenant has breached the lease and that, as a result, the landlord is entitled to possession of the premises. The complaint should also request, in a second allegation, that the court award back rent, accelerated rent and any other damages allowable by law or covered in the lease. Local municipal courts generally address damages of $15,000 or less. So for higher potential damages, the landlord should file in a common pleas court.
4. Conduct the court hearing on the eviction.
Courts usually schedule these three to five weeks after a complaint is filed. Eviction hearings are usually very brief and, unless the tenant has a serious defense or counterclaim, an eviction is usually granted immediately. However, an eviction order simply requires the tenant to tender possession of the premises to the landlord, and does not physically remove the tenant’s property (See Steps 6 & 7).
5. Return for a hearing on damages.
To obtain a money judgment, a second hearing must be scheduled in court to provide testimony about the amount of back rent, accelerated rent, liquidated damages or any physical damages to the premises. The court will usually hear testimony and then rule later in a written judgment that will allow the landlord to collect against the debtor tenant or any personal guarantors.
6. Schedule an eviction date with the county sheriff.
To physically remove a tenant, the landlord or his representative should contact the local Sheriff’s Department to schedule a time and date for deputies to be present while property is removed. The sheriff can typically schedule an appointment in two to four weeks.
7. Remove the property.
Although sheriff’s deputies are present to “keep the peace,” the landlord must provide the resources to remove furniture, equipment or other items on the eviction date. Reasonable care must be taken to avoid damaging the tenant’s property. A landlord cannot sell a tenant’s property unless a money judgment has been obtained and the proper garnishment filings have been made with the court.
8. Collect remaining debts.
Many times, even after a successful eviction, the tenant still owes the landlord money. Strategies for collecting against a commercial tenant include seizure of property and assets, garnishments of contracts and receivables and bank attachments, among others.
Evicting a commercial tenant is frequently a stressful experience for all involved. But following the proper strategies and working with an experienced attorney can remove a non-paying tenant with the least amount of damage or loss.
Michael J. McGee is a lawyer with HHM in Warren, Ohio, and can be reached at email@example.com or at (330) 392-1541.