Type of Notices:
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Pay Rent Or Quit notices are typically used when the tenant has not paid the rent when due. They give the tenant a few days - usually 3 to 7, depending on the jurisdiction - to pay up or move out (Quit). In most states, you can send a Pay Rent or Quit notice as soon as the tenant is even one day late with the rent. A few states (Connecticut, Delaware, Maine, Oregon and Rhode Island) will not let you send a termination notice (either a Pay Rent or Quit notice or an Unconditional Quit notice) until the rent is a certain number of days late. in these states, tenants enjoy a statutory "grace period," plus the time specified in the Pay Rent or Quit notice, in which to come up with the rent.
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Cure or Quit notices are typically given after a violation of a term or condition of the lease or rental agreement, such as a violation of a no pets clause or the promise to refrain from making excessive noise. Normally the tenant has a set amount of time in which to correct, or "cure," the violation; a tenant who fails to do so must move or face an eviction lawsuit.
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Unconditional Quit notices are just what the name says. They order the tenant to vacate the premises with no chance to pay the rent or correct the lease or rental agreement violation
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Many states have all three types of notices on the books. But in some states, Unconditional Quit notices are the only notice statutes. Landlords in these states may extend second chances if they wish, but no law requires them to do so.
No Second Chances: Landlords in these states may use Unconditional Quit notices and demand that tenants leave without giving them a chance to pay the rent, correct the lease violation, or reform their behavior.
Arkansas
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Ohio
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Texas
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Louisiana
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Pennsylvania
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West Virginia
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Missouri
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South Dakota
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Wyoming
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North Dakota
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A landlord may have a choice among these three notices, depending on the situation. For example, a Wisconsin landlord may give month-to-month tenants an Unconditional Quit or a Pay Rent or Quit notice for late payment of rent. The tenant cannot insist on the more lenient notice. Check you State Page.
Time to Terminate:
There are three kinds of eviction timetables.
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One we will call a SUPER-SHORT eviction and may not require any notice at all.
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Another we will call QUICK, which typically uses either a Pay Rent or a Cure or Quit notice.
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The third we will call a LONG eviction. It may use either of the previous two types of of notice.
A super-short eviction requires no initial notice to the tenant. A quick eviction begins with a 3-10-day notice to the tenant and can often be completed within the span of a month. A long eviction begins with a notice running for the length of the usual rent cycle (7 days, 14 days, 15 days, 30 days or more). If the usual rent cycle runs month-to-month, the full eviction process will take nearly two months at a minimum. While we will describe each of these types in much greater detail, here is a quick summary:
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SUPER‑SHORT: No notice required; used in certain types of trespass.
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QUICK: 3 to 10-day notice; used with non-payment of rent and certain instances of property destruction, violations of law, or health hazards.
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LONG: Notice equal to the rental period; used to terminate the tenancy.
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SUPER-SHORT EVICTION: In certain situations one may proceed directly to court and begin an action against a tenant without any preliminary notice period. Those situations may be:
TRESPASS WITHOUT COLOR OF TITLE: The occupant of the subject premises came there without any claim of right to be there and is a genuine trespasser. Please note that "color of title" does not mean legitimate title. It refers to a circumstance in which the occupant may reasonably BELIEVE that he has a right to be on the premises. For example, the occupant may have sublet the premises from a bona fide tenant. Because the bona fide tenant's lease forbids subletting without written permission from the landlord, the sublease is invalid. Nevertheless, the sub-lessee may not be evicted without preliminary notice. He occupied the premises under "color" of title. He is not a true trespasser. Only the true trespasser may be evicted via the super-short procedure.
FORCIBLE ENTRY CONTRARY TO LAW: No preliminary notice is required to begin a legal action against any person who entered the subject premises by force having no prior legal right to do so. There are certain situations where a person acquired possession of the premises in some peaceable manner and the person might have certain rights preventing a super-short eviction. In such cases, those rights are insufficient to protect him if he forces his way onto the premises. An example might be the person with "color" of title described in the paragraph above. "Color" of title is not sufficient to permit him to occupy the premises in a forcible manner. Should he do so, the super-short procedure may be used to oust him.
EXPIRED LEASE: In the event that the lease term of a valid written or oral lease has expired, no preliminary notice is required in most states before court action is commenced. There are certain caveats (a legal term meaning "things to beware of") to observe, however.
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A month-to-month rental situation is not a lease and does not expire without notice.
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A lease containing an automatic renewal clause cannot be terminated without notice.
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A "hold-over" tenancy cannot be terminated without notice. Once a landlord has accepted rent from a tenant or in any other way accepted a continuing tenancy after expiration of the lease, he has ratified the tenant's hold-over status and has created a month-to-month tenancy. Once again, such a month-to-month tenant is entitled to notice.
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A lease for a year or more must be in writing, under the Statute of Frauds, in order to be enforceable.
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NOTE: Courts may like to see a notice in the file even in the case of an expired lease. It makes the paperwork seem more complete. Therefore, it is wise to issue a notice even in that situation. Since no notice PERIOD is needed, fulfill this need by the simple expedient of sending out a Unconditional Quit Notice 30 days prior to the lease expiration date.
THE QUICK EVICTION
What we call a "quick" eviction is any summary proceeding, which allows use of a few days Notice to Quit as the initial step in the procedure. The situations which allow use of such a notice are:
NON-PAYMENT OF RENT: The vast majority of all eviction actions are of this type. If any delinquency in the payment of rent exists, a Notice to Pat Rent or Quit may be served on the delinquent tenant as early as the day following the due date, in most states. Check yours for a possible statuary GRACE PERIOD. Therefore, if rent is due on the first, a notice may legally be served on the next business day. Service may be by hand delivery by the landlord to the tenant in person, service upon the tenant by a process server or service by the use of ordinary first-class mail. The notice itself is very simple, but we will provide precise directions for its preparation a little later.
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By accepting even a partial amount of rent a tenant owes - whether for past months or even just the current month - you will, in most states, cancel the effect of a Pay Rent or Quit notice. But you can still go ahead with your attempts to get the tenant out; just pocket your tenant's payment with one hand and simultaneously hand him a new termination notice with the other, demanding that he pay the new balance or leave. Some judges will consider an un-cashed check just a promise to pay. If you don't cash the partial payment check, and bring it to court, the judge may allow the eviction to continue and some will allow you to cash the check as well.
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If you sign a written agreement with the tenant setting up a payment schedule for delayed or partial rent, you must comply with this agreement. If the tenant does not end up honoring this agreement, you may then take steps to terminate the tenancy.
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CHRONICALLY LATE RENT PAYMENT: In several states, you don't have to give tenants a second chance to pay the rent if they are habitually late. Typically, you're legally required to give the tenant a chance to pay and stay only once or twice within a certain period. In Connecticut, for example, if your tenant has been late with the rent more than once in the past six months, the next time he doesn't pay on time you don't have to give him the option of paying the rent or leaving. Instead, you can send him an Unconditional Quit notice that simply tells him to leave within five (5) days.
Some states insist that you give the tenant a written Pay Rent or Quit notice for the first late payment, so that there is proof that rent was late, Other statutes allow you to use the Unconditional Quit notice merely for "repeated lateness." In that case, you need not have given the tenant a notice to pay or quit for the first tardiness, but it's good business practice to do so anyway. If your tenant claims that he has always paid the rent on time, you'll have prior Pay Rent or Quit notices to show otherwise.
You can always use a 30-day Termination Notice for month-to-month tenants who are chronically late. You need not worry about the complexities of your state's unconditional quit procedure for month-to-month tenants who repeatedly pay late. Simply terminate the tenancy with a 30-day notice, which may be quicker, in the long run, if the tenant challenges your use of the unconditional quit notice. Even if you live in a rent control area that requires landlords to have good reason to evict, repeatedly paying late is ample legal reason to end a tenancy.
SERIOUS & CONTINUING HEALTH HAZARD: If the tenant is willfully or negligently creating an unhealthful environment within or on the rented premises that is a genuinely serious threat to the well-being of the tenant or any other persons, many states provide that he may be served a notice to quit in the same fashion as already described. In this instance, the nature of the health hazard must be described on the notice in the space provided. The notice orders the tenant to correct the problem or vacate the premises within the statutory number of days. Again, there are certain caveats to observe:
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The conditions complained of must be genuinely serious.
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They must be on-going and continuous.
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Most importantly, the problems must be provable by the complaining party. The proof problem can be most easily met by involvement of public health officials or housing inspectors. Once such officials have inspected the premises they may be subpoenaed into court to testify for the landlord. Subpoenas are available from the court office. Another caveat: Involving health and housing inspectors may be like opening Pandora's box. While you may be assisted with your eviction, you may also see your property condemned and/or (under most housing codes) receive orders to undertake immediate clean-up and repairs, no matter what the cost.
TENANT'S ILLEGAL ACTIVITY ON THE PREMISES: In recent years, many states have responded aggressively to widespread drug dealing in residential neighborhoods by making it easier for landlords to evict based on these activities. In fact, in some states you must evict known drug dealers or risk having authorities paddle-lock or eventually even confiscate your entire property. Authorities believe that the threat of losing rental property is strong motivation to quickly evict tenants suspected of engaging in illegal acts. You don't always have to wait until the tenant is convicted of a crime or even arrested. As we write, in Texas and North Carolina and Michigan, you may evict as long as you have a "reasonable suspicion" that illegal activity is afoot and the tenant or the tenant's guests are involved. By contrast, in New Jersey you may not begin an eviction for illegal activity unless there's been a criminal conviction for criminal acts on the rented premises.
Evictions based on criminal activity are often called "expedited evictions" because they take less time than a normal eviction. Expedited evictions are preceded by an Unconditional Quit notice that tells the tenant to move out (and do it quickly). If the tenant stays, you can go to court and file for eviction. The court hearing on the eviction is typically held within a few days, and if you win, the tenant is given very little time to move. For example, in Oregon the tenant has 24 hours to vacate after a landlord wins in court.
EXTENSIVE AND CONTINUING PHYSICAL INJURY TO THE PREMISES: Generally, this is the least-used ground for eviction, primarily because of the difficulty of presenting proofs in court as to the extent and continuing nature of the damage. The damage claimed must be extensive, physical, and continuing. Simply alleging (ALLEGE is a legal term meaning "to make a claim without, as yet, providing proof") the existence and nature of the damage will get you into court, but proof of each of the above 3 elements will be necessary if you are to prevail once there. Please do not be misled. This is a perfectly valid ground for eviction and, if you can perform the rather tough job of collecting the necessary hard evidence, it can lead to the desired expulsion of your tenant.
CONDEMNATION: Because of various conditions or defects found within a rental unit, health or housing inspectors may condemn the unit. In many, if not most, jurisdictions, the term "condemn" does not refer to razing a structure. Instead, it means that the condemned premises are not deemed fit and safe for human habitation. When this occurs, local law almost always requires that the unit be vacated, but leaves that task to the landlord. Neither the statute nor the court rules normally provide specifically for this situation. However, acceptable ways of doing it have developed through usage. One method uses termination of tenancy forms with the time interval in the notice to quit set at the proscribed number of days. In both the notice to quit and the subsequent complaint, insert the following, typed in any available space:
Property condemned; tenant must vacate. Immediate Writ Requested.
The second method uses the health hazard forms described above and inserts the same two notices. Make discreet enquiries to determine which approach your local court prefers. This matter of condemnation also raises an interesting side issue. The summoning of an inspector by a tenant can invoke a concept called retaliatory eviction.
See Tenant Defenses Against Eviction in Section Four
Forty-one states prohibit landlord retaliation by law. Once a tenant has called in an inspector, that tenant enjoys a legal presumption that any attempt to evict him (for any reason) is really retaliation for this exercise of his rights. The prohibition lasts from 90 days to a year, depending on your state. Any such eviction attempt thereby becomes void. In other words, the tenant has not only caused you trouble with the authorities and, probably, gained you the usual long list of mandated repairs, but has made himself eviction-proof at the same time. Occasionally, this frustrating situation can be turned to your advantage. If the inspector is sufficiently displeased with the condition of the unit, it may be that he can be gently persuaded to go one step farther and condemn it. For example, is that moist spot in the kitchen ceiling caused by a defective water line or a defective drainage line? Is it possible that sewage may be dripping into the unit's kitchen? If the unit is condemned, one of the two methods described above may be used, under authority of the local housing code, to evict the tenant.
Thereafter, thorough and speedy repairs should succeed in lifting the condemnation.
VIOLATIONS OF LEGAL RESPONSIBILITIES: Virtually every state allows you to terminate the tenancy of a tenant who has violated basic responsibilities imposed by law, including:
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Grossly deficient housekeeping practices that cause an unhealthy situation, such as allowing garbage to pile up.
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Seriously misusing appliances, such as damaging the freezer while attempting to defrost it with an ice pick.
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Repeatedly interfering with other tenants' ability to peacefully enjoy their homes, such as hosting late parties, playing incessant loud music, or running a noisy small business (e.g., repairing cars in the driveway of a rental duplex).
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Substantially damaging the property - for instance, knocking holes in the walls or doors.
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Allowing or participating in illegal activities on or near the premises, such as drug dealing or gambling.
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Many careful landlords incorporate these obligations into their leases or rental agreements. See Sample Lease Clauses in the Property Management Web. But even if these obligations are not mentioned in your rental documents, tenants are usually still legally bound to observe them.
If a tenant or guest substantially damages the premises, you'll be within your rights to use an Unconditional Quit notice. The law does not require you to give tenants accused of serious misbehavior a second chance. Tenants who have earned this type of termination notice generally get only five to ten days to move out.
MISCELLANEOUS GROUNDS FOR EVICTION (LONG)
There remain a handful of grounds for eviction that are less frequently used, but still deserve your attention:
TERMINATION PER PROVISION IN LEASE: If the tenant violates a provision in the lease and the lease provides that it may be terminated in such event, the landlord may proceed to notify the tenant of the termination and reason for same. The landlord should also serve a NOTICE TO TERMINATE TENANCY at the same time and allow that notice to run for the normal rent cycle under the lease, be it 7 days, 14 days, 15 days or 30 days. Real difficulties may be encountered if there is no termination clause in the lease. For example, should the violation be the acquisition of a dog in spite of a lease prohibition of all pets and there is no clause in the lease that specifically asserts that such a violation is grounds for termination, the court may force you to accept monetary damages for the breach or settle for a promise to part with the dog. While this is not a general discussion of the pro's and con's of lease drafting, it should be pointed out that a clear termination clause is essential to the landlord's protection. A good termination clause should state that ANY violation of the various provisions of the lease constitutes grounds for termination of the subject tenancy.
TERMINATION PER PROVISION IN LEASE IMPLIED BY LAW: While the fact may come as something of a shock to many landlords and tenants, there are many provisions in every lease that do not appear on the paper. This strange situation stems from the fact that every federal statute, state statute, municipal, county or township ordinance as well as all federal and state court decisions which bear on or regulate the operation of rental property are deemed to be part and parcel of the lease. By way of a very small example, any local housing code that may be in effect for the area in which the rental property lies is held to be an integral part of any lease written for that property. Thus, a good knowledge of the legal codes and court decisions may often provide one party or the other with an invisible provision of the lease which the other party may have violated. Once again, to provide a small example, the local housing code may require tenants to dispose of garbage in a certain way. Under the above interpretation, failure of the tenant to comply with the code would also be a violation of the lease. Any such violation should be pursued in the same manner as a violation of the visible lease.
NO CERTIFICATE OF COMPLIANCE: When rental housing is governed by a local or state housing code, a Certificate of Compliance is often required before normal rental operations become legal. In the event that a required certificate is not granted, or having been granted is revoked or suspended, it may be necessary to evict the tenants to avoid penalty under the code. While the appropriate government agency MAY do this, it has the right to insist that the landlord do it at his expense. Unless conditions of a hazardous nature are involved, notice equal to the normal rent cycle would be appropriate.
ANYTHING YOU DESIRE: As long as you are not bound by a valid un-expired lease or your tenant's rent is not government subsidized, you do not usually need a reason to evict. It is sufficient that you have private reasons of your own. Absent a lease presently in force, only public housing authorities or Section 8 landlords must demonstrate cause (as we write this there is some question about whether Tax Credit Buildings are to be considered government subsidized and subject to the evict only with with cause restriction).
Once again, your at-will termination will require an appropriate notice, using a Notice to Quit: Termination of Tenancy and the notice period will be equal to the normal rent cycle for that particular tenant.
NOTE: If a lease is in force, the tenant must be found in a breach thereof sufficient to terminate the lease. Once the lease has been properly ended, you are free to evict under this paragraph.
SPECIAL NOTE: From the standpoint of possible eviction, should you have a lease? There is much dispute on this point, but our opinion is as follows: Always have your rental covered by a "writing", but remember that this can be a rental agreement or a lease. Rental agreements are exactly the same as a lease except that they usually expire at the end of each rental period and renew upon payment and acceptance of rent for the next rental period. Remember though, it is the terms of the document, not the title, that determine what type of document it is. We suggest that a rental agreement be used instead of a lease when a tenant's credit score is not above average (See the Credit Web) or when the units are in a more transient part of town. Keep in mind that, no matter how strong and detailed the provisions of your lease, any violations must be PROVEN in court to effect an eviction. This can be surprisingly difficult. Under a rental agreement, you need only decide not to renew.
This subject is discussed further in a section titled: To Lease Or Not To Lease.
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