How Tenants Stop or Postpone an Eviction
If you win the eviction lawsuit, you'll want to move quickly to physically remove the tenant from the property. However, in rare instances, a tenant may be able to get the trial judge to stop the eviction, but only if the tenant can convince the court of two things:
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Eviction would cause a severe hardship for the tenant or his family. For example, the tenant may be able to persuade the judge that no other housing is available and his job will be in jeopardy if he is forced to move immediately.
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The tenant is willing and able to pay any back rent and costs owed to satisfy the judgment and demonstrates the ability to pay future rent, as well. For example, tenants in Maryland can reinstate their tenancy by paying rent and court costs after the landlord has won the eviction lawsuit, but before the physical eviction. That rule is common in some other states as well. See Pay & Stay
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It is very unusual for a judge to stop an eviction because the court would have considered everything at trial. If the tenant's sympathetic predicament wasn't persuasive enough to win the case for him in the first place, it's unlikely that the same arguments can prevail after the trial.
The tenant may, however, ask for a postponement of the eviction. Typically, evictions are postponed in three situations:
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Pending an appeal. If the tenant files an appeal, he may ask the trial judge to postpone ("stay") the eviction until a higher court decides the case. A tenant who has been evicted in small claims court may, in a few states, enjoy an automatic postponement during the appeal. That is is one reason why smart landlords in these states seldom use small claims court.
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Until the tenant's circumstances improve. A tenant may be able to persuade a judge to give him a little more time to find a new home.
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Until the weather improves. Contrary to popular belief, judges in many cold-climate states (including Alaska, Minnesota and North Dakota) are not required to postpone an eviction on frigid days. But there's nothing to stop tenants from asking the judge anyway. However, in the District of Columbia a landlord may not evict on a day when the National Weather Service predicts at 8:00 a.m. that the temperature at the National Airport will fall below freezing within the next 24 hours. (D.C. Code § 45-2551(k).)
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We often hear stories that a judge won't evict a tenant at Christmas. We have never been able to document any such a story.
Filing for Bankruptcy
Tenants with significant financial burdens may decide to declare bankruptcy. There are several kinds of bankruptcy; the most common are "Chapter 7," in which most debts are wiped out after as many creditors as possible have been paid; or "Chapter 13," in which the debts remain but are paid off over time according to a court-approved plan.
As soon as a tenant files a bankruptcy petition, and whether you know about it or not, an automatic "stay" (court order) takes effect that bars you from terminating a tenancy or starting or continuing an eviction proceeding. This is true even if-your lease or rental agreement says you can immediately terminate a tenancy if the tenant files for bankruptcy. (11 U,S. Code 5 365(e).)
The law means that if your tenant has filed for either Chapter 7 or 13 bankruptcy and is behind in the rent, becomes unable to pay the rent or violates another term of his tenancy (such as keeping a pet in violation of a no-pets clause), you can't deliver a termination notice or proceed with an eviction.
Even if you have already gone to court and obtained an eviction order, the eviction process must stop if the tenant files for bankruptcy. Don't conclude, however, that tenants who file for bankruptcy can violate their lease or not pay the rent with impunity. At most, filing for bankruptcy buys them a little time. A landlord can simply go to the federal bankruptcy court and ask the judge to remove the automatic stay. (11 U.S. Code 55 362(a)(1), (2) & (3).) In most cases, the federal judge will lift the stay within a matter of days and the landlord can continue with the termination and eviction.
A Tenant's Lease After Bankruptcy
Filing for bankruptcy affects a tenancy even if the tenant is not behind in the rent or otherwise in violation of his lease. After he files, the "bankruptcy trustee" (a person appointed by the bankruptcy court to oversee the case) must decide whether to carry on with or terminate the lease or rental agreement. In most situations, the trustee will let the tenant keep the lease, since it wouldn't be of any benefit to his creditors to force him to incur the expense of finding a new home and moving. First, however, he must pay any unpaid back rent.
If the trustee keeps the lease, you have the right to ask the bankruptcy court to demand that the tenant show proof of his ability to pay future rent. (11 U.S. Code §§365(b)(1)(A), (13) & (Q.) Of course, if he becomes unable to pay the rent after the lease is assumed, you can ask the bankruptcy court to lift the stay so that you can terminate and, if necessary, evict. |
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