Property Managers, Commercial Tenants and Evictions

Your commercial tenant failed to pay lease. You have heard that things are certainly not 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 failed to pay by the due date they have efficiently breached the lease and you are eligible for evict the tenant from the property or home. An eviction lawsuit commonly called an Unlawful Detainer action is really a fairly straightforward legal process. The main thing for property managers to know is that the steps involved in this process are critical and must be followed to the letter of the law. A real estate lawyer representing both parties in the action is common. If your property manager has followed the law, given proper notice, and it has a detailed file of all of the correspondence involving the tenant and their company the particular unlawful detainer action should go pretty smoothly and the landlord or owner should prevail.

The First Step Is To Resolve Rent Payment Issue If Possible

If 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 own personal company policies and best practices will certainly dictate this action, but it would be much better for all parties to resolve before lawsuit.

Three-Day Notice Drafted

If a payment 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 specific 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.

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

The Three-Day Notice Must Be Correctly and Legally Served

The tenant is deemed served when they are personally served with the three-day observe, or a responsible person at the office is personally served on the premises. In the event no one is available the landlord or property manager can connect the notice to the front entry door of the business premises while concurrently sending a copy of the three-day notice by certified mail return receipt requested. The landlord or even property manager must then prepare 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 describe the method of service.

The Property Supervisor or Landlord Has a Three Day Waiting Period Required for Service to work

After properly serving the three-day notice a three day waiting period begins on the next business day. If the third day falls on the weekend or holiday the three day waiting period is extended to the next business day.

If the tenant decides to pay for all rent due at this point or even corrects any outstanding violation of the lease terms then the eviction process ceases. If the tenant makes part payment the landlord or property or home manager can accept partial transaction but must notify the renter that they are not waiving their legal rights to proceed with an eviction.

When the tenant has violated the particular lease by way of some criminal action or conduct then the eviction procedure continues.
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At the end of the three day waiting period the landlord or house manager may go forward with filing and serving a complaint and summons.

Summons and Complaint are ready and Served

In the event that the tenant has failed to cure their exceptional rent violation, or failed to remedy any other violation that they have been house notified of, then the landlord or even property manager may proceed along with filing and serving the summons and complaint to the tenant. A 3rd party not involved with the action, usually a registered process server could be hired for a fee to assist the papers on the tenant. The summons, complaint and proof of assistance must then be filed using the court clerk’s office together with a copy of the lease, and then property served three-day notice and its proof of service.

Technical Mistakes Can Cause Delays

If the landlord or property supervisor has taken this process on by themselves there exists a possibility that they have made a specialized error in the processing, preparing, offering, and filing these documents. There are many technical areas of the law which must be followed or will result can be substantial delays if they are not. A tenant who hires an attorney will likely find these technical errors, when 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 lawyer to help prevent delays and additional costs for the owner.

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

If the tenant does not contest the eviction

A properly served renter has five days to oppose the eviction. If substituted services was used then the tenant might have fifteen days to file a receptive pleading to the action. If the renter fails to oppose the eviction the landlord or property manager may seek a default judgment of possession of the premises. This will most likely be granted and the case will be referred to the Sheriff’s office intended for tenant lockout (see below).

If the tenant contests the eviction

When the tenant hires an attorney and competitions the eviction then things will require a while longer. The tenant will be granted more time to prepare and you will have approximately thirty-day period in which a trial 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 benefits the landlord may have to pay attorneys’ fees. In this situation a property supervisor really needs to be represented by advice.

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

Assuming a landlord victory the particular county sheriff will post the ‘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 landlord or property manager on the property. The landlord or property manager then receives a receipt of possession of the property. When the tenant is still there when the sheriff comes, the sheriff will then physically take away the tenant. The landlord or property manager will now have a locksmith arrive and change the locks to keep the particular tenant out.

Notice to Claim Property

If the tenant leaves behind personal property there are state statutes that deal with this specific issue. The landlord or property manager must provide the tenant fifteen days after the lock period to claim any possessions 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 particular notice must describe the property with specificity so the tenant can identify it, and the notice must also describe the storage costs. A wise practice for a landlord or property or home manager would be to photograph and log all of the tenants’ belongings so that there is not a later dispute.

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

Unclaimed Property Disposed of or Sold

When the fifteen day waiting period has ended the landlord or property supervisor can dispose of the tenant’s individual property if it is worth less than $750 or $1. 00 per square foot, whichever is greater. If the property is worth more the homeowner or property manager must auction it through a public sale held right after properly published notice with the profits turned over to the county, minus expenses.

Conclusion

Although this article offers 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 eviction attorney help a landlord and/or a property manager through this method.

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