November 25, 2020

Property Managers, Commercial Tenants and Evictions

Your commercial tenant failed to pay rent. You have heard that things aren’t going very well for them, but now it really is apparent. As a property manager your own duty and obligation is to resolve the issue as quickly as possible. When the tenant did not pay by the due date they have effectively breached the lease and you are entitled to evict the tenant from the property or home. An eviction lawsuit commonly called an Unlawful Detainer action is a fairly straightforward legal process. The main thing for property managers to know is that the steps involved in this process are vital and must be followed to the notice of the law. A real estate attorney representing both parties in the action frequently occurs.
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If your property manager has followed the law, given proper notice, and has a detailed file of all of the correspondence between tenant and their company the particular unlawful detainer action should go fairly smoothly and the landlord or proprietor should prevail.

The First Step Is To Resolve Rent Payment Issue If Possible

If at all possible the property manager should make every effort to get the tenant to make the rent payments and bring their lease current. Issue involves waiting a few extra times for payment maybe this would be the best course of action instead of filing a lawsuit. Your individual company policies and best practices can dictate this action, but it would be better for all parties to resolve before litigation.

Three-Day Notice Drafted

If a transaction is not forthcoming then a ‘three-day notice to pay or quit’ must be prepared and properly served on the tenant. This notice must be in a particular legal format. A commercial proprietor, landlord or property manager can pick between different types of 3-day notices; 1) specifies the precise amount of rent due; or 2) estimates the amount of rent owed – usually when a renter is paying a percentage rent.

If the lease requires the tenant to pay for rent and other separate amounts for triple net or CAM fees, the property manager should get the appropriate advice on whether or not two separate plus distinct notices are required to be offered. For example , if the property manager or landlord accepts an overpayment of the rent because they have miscalculated as well as the tenant overpaid estimated rents and CAM charges this may lead to a tenant victory in the unlawful detainer action. This would also possibly give the tenant the right to attorneys’ charges. It is critical to be correct in this stage.

The Three-Day Notice Must Be Correctly and Legally Served

The tenant is deemed served when they are personally served with the three-day see, or a responsible person at the office is personally served on the property. In the event no one is available the homeowner or property manager can attach the notice to the front doors of the business premises while simultaneously sending a copy of the three-day notice by certified mail return receipt requested. The landlord or even property manager must then make a ‘proof of service’ in the appropriate format which states in important part that the ‘three-day notice’ has been served on the tenant, or explain the method of service.

The Property Supervisor or Landlord Has a Three Day time Waiting Period Required for Service to be Effective

After properly serving the three-day notice a three day waiting period begins on 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 decides to pay all rent due at this point or corrects any outstanding violation of the lease terms then the eviction procedure ceases. If the tenant makes partial payment the landlord or home manager can accept partial transaction but must notify the tenant that they are not waiving their rights to proceed with an eviction.

If you think the tenant has violated the particular lease by way of some criminal action or conduct then the eviction procedure continues.

At the end of the three day waiting around period the landlord or property manager may go forward with processing and serving a complaint plus summons.

Summons and Complaint have decided and Served

In the event that the renter has failed to cure their outstanding rent violation, or failed to cure any other violation that they have been real estate notified of, then the landlord or property manager may proceed along with filing and serving the subpoena and complaint to the tenant. A 3rd party not involved with the action, generally a registered process server can be hired for a fee to serve the papers on the tenant. The particular summons, complaint and proof of program must then be filed with the court clerk’s office together with the copy of the lease, and then home served three-day notice and its proof of service.

Technical Mistakes Can Cause Delays

If the landlord or property manager has taken this process on by themselves there is a possibility that they have made a technical error in the processing, preparing, portion, and filing these documents. There are many technical areas of the law which should be followed or will result will be substantial delays if they are not. A tenant who hires an attorney will likely find these technical errors, if the court doesn’t find the errors. This will likely result in delays which means money to the property owner. The best course of action in these circumstances is to hire an eviction attorney to help prevent delays and additional expenses for the owner.

Court Proceedings Require that All Parties Appear in Front of the Judge

If the tenant does not match the eviction

A properly served tenant has five days to oppose the eviction. If substituted support was used then the tenant could have fifteen days to file a reactive pleading to the action. If the renter fails to oppose the eviction the particular landlord or property manager will seek a default judgment of possession of the premises. This will probably be granted and the case will be referred to the Sheriff’s office regarding tenant lockout (see below).

If the tenant contests the eviction

In the event the tenant hires an attorney and battles the eviction then things will take a while longer. The tenant will be granted more time to prepare and you will have approximately thirty-day period in which a demo will be set. If the landlord benefits then the tenant will have to pay the particular rent and other losses most 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 lawyer.

The Landlord or Property Supervisor has the Right to Lockout the Renter

Assuming a landlord victory the county sheriff will post a ‘Five-Day Notice to Vacate’ the premises on the tenant’s door or entry into the business. On the 6th day the sheriff meets the particular landlord or property manager on the property. The landlord or real estate manager then receives a receipt of possession of the property. If the tenant is still there when the sheriff happens, the sheriff will then physically take away the tenant. The landlord or home manager will now have a locksmith are available and change the locks to keep the tenant out.

Notice to State Property

If the tenant leaves behind personal property there are state statutes that deal with this specific issue. The homeowner or property manager must give the tenant fifteen days after the lock period to claim any belongings from the property, or if the renter left before the lockout, eighteen (18) days after the mailing of the “notice of belief of abandonment” towards the tenant’s last known address. The notice must describe the property with specificity so the tenant can determine it, and the notice must also describe the storage costs. A a good idea practice for a landlord or property or home manager would be to photograph and record all of the tenants’ belongings so that there was clearly not a later dispute.

It is not legal for a landlord or property manager to hold a tenant’s personal house as security for payment pounds awarded by a court judgment.

Unclaimed Property Disposed of or Sold

Once the fifteen day waiting period is over the landlord or property manager can dispose of the tenant’s private property if it is worth less than $750 or $1. 00 per square foot, whichever is greater. When the property is worth more the homeowner or property manager must sell it through a public sale held after properly published notice with the takings turned over to the county, less expenses.

Conclusion

Although this article provides briefly touched upon this process you should see that this is not a simple process, but is a process which should be taken seriously and professionally. It is always a best practice to have an eviction attorney help a landlord and/or a property manager through this technique.

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