Your commercial tenant did not pay the rent. You have heard that things are not going very well for them, but now it is evident. As the property manager, your duty and obligation is to resolve the issue as soon as possible. When the tenant did not pay by the due date, they have effectively breached the lease and you have the right to evict the tenant from the property. An eviction lawsuit commonly called an unlawful detainer action is a fairly straightforward legal process. The important thing for property managers to know is that the steps involved in this process are critical and must be followed to the letter. A real estate attorney representing both parties in the action is common. If your property manager has complied with the law, given proper notice, and has a detailed file of all correspondence between the tenant and their business, the illegal detainer action should go smoothly and the landlord or landlord should prevail. .
The first step is to solve the problem of paying the rent if possible
If possible, the property manager should make every effort to get the tenant to make the rent payments and update the lease. If this means waiting a few extra days for payment, this may be the best course of action rather than filing a lawsuit. Your individual company policies and best practices will dictate this action, but it would be best resolved by all parties prior to litigation.
Written three-day notice
If a payment is not received, a “three-day notice to pay or resign” must be prepared and properly served on the tenant. This notice must have a specific legal format. A business owner, landlord, or property manager can choose from different types of 3-day notices; 1) specify the exact amount of rent owed; or 2) estimates the amount of rent owed, usually when a tenant pays a percentage of rent.
If the lease requires the tenant to pay the rent and other separate amounts for triple net or CAM charges, the property manager must obtain appropriate advice on whether or not two separate and distinct notices are required. For example, if the property manager or landlord accepts an overpayment of rent because they miscalculated and the tenant overpaid the estimated rents and CAM charges, this can lead to a tenant victory in the withholding action illegal. This would also entitle the tenant to attorney’s fees. It is essential to be correct in this step.
The three-day notice must be properly and legally served
Tenant is considered served when the three-day notice is personally delivered, or when it is delivered personally to a responsible person at the place of business. In the event that no one is available, the owner or property manager can attach the notice to the main entrance door of the business premises and at the same time send a copy of the three-day notice by certified mail with return receipt requested. . The landlord or property manager must then prepare a ‘proof of delivery’ in the appropriate format that indicates in the relevant part that the ‘three-day notice’ was delivered to the tenant, or describes the method of delivery.
The property manager or landlord has a required three-day waiting period for the service to be effective
After successfully serving the three-day notice, a three-day waiting period begins 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 of the rent owed at this time or correct any pending violations of the terms of the lease, the eviction process ceases. If the tenant makes a partial payment, the landlord or property manager can accept a partial payment, but must notify the tenant that they are not giving up their rights to proceed with an eviction.
In the event that the tenant has violated the lease through any criminal act or conduct, the eviction process continues.
At the end of the three-day waiting period, the property owner or manager can go ahead with filing and serving a complaint and summons.
Summons and Complaints Prepared and Served
In the event that the tenant has not remedied the pending rental violation, or has failed to remedy any other violation that the property has been notified of, the owner or property manager may proceed to file and serve the summons and the complaint to the tenant. A third party who is not involved in the action, usually a registered process server, can be hired for a fee to deliver the documents to the tenant. The summons, complaint, and proof of service must be filed with the court clerk’s office along with a copy of the lease, and then the property must give you three days’ notice and your proof of service.
Technical errors can cause delays
If the property owner or manager has taken on this process himself, there is a possibility that he has made a technical error in the processing, preparation, delivery and filing of these documents. There are several technical areas of the law that must be followed or will result in substantial delays if not followed. A tenant who hires an attorney is likely to find these technical errors, if the court does not find them. This will likely result in delays, which means money for the property owner. The best course of action in these situations is to hire an eviction attorney to help prevent delays and additional costs to the landlord.
Court proceedings require all parties to appear before a judge
If the tenant does not contest the eviction
A properly cared tenant has five days to object to the eviction. If the substitute service was used, the tenant would have fifteen days to file a plea in response to the action. If the tenant does not object to the eviction, the landlord or property manager will seek a default judgment of possession of the property. It will most likely be granted and the case will be referred to the sheriff’s office for the tenant’s lockout (see below).
If the tenant challenges the eviction
In the event that the tenant hires an attorney and contests the eviction, things will take a little longer. The tenant will be given more time to prepare and there will be a period of approximately thirty days in which a trial will be established. If the landlord wins, the tenant will have to pay the rent and other losses that probably include attorney’s fees. If the tenant wins, the landlord may have to pay attorney’s fees. In this situation, the property manager really needs to be represented by an attorney.
The owner or property manager has the right to block the tenant
Assuming a landlord’s victory, the county sheriff will post a ‘Five Day Notice to Vacate’ the premises on the tenant’s door or at the entrance to the business. On the sixth day, the bailiff meets with the property owner or manager at the property. The property owner or manager receives a receipt for possession of the property. If the tenant is still there when the sheriff arrives, the sheriff will physically remove him. The property owner or manager will now have a locksmith come in and change the locks to keep the tenant out.
Notice to claim ownership
If the tenant leaves personal property, there are state statutes that address this specific issue. The owner or property manager must give the tenant fifteen days after the closing period to claim any possession of the property, or if the tenant left before closing, eighteen (18) days after the mailing of the “notice of abandonment belief “to the tenant’s last known address. The notice must describe the property specifically so that the tenant can identify it, and the notice must also describe storage costs. A prudent practice for a landlord or property manager would be to photograph and record all of the tenants’ belongings so there is no subsequent dispute.
It is not legal for a landlord or property manager to retain a tenant’s personal property as security for the payment of money awarded by a court judgment.
Unclaimed property disposed of or sold
When the fifteen-day waiting period ends, the owner or property manager can dispose of the tenant’s personal property if it is worth less than $ 750 or $ 1.00 per square foot, whichever is greater. If the property is worth more, the property owner or manager must auction it off through a public sale made after a duly published notice with the proceeds delivered to the county, less expenses.
Conclution
Although this article has briefly touched on this process, one should see that it is not a simple process, but rather a process that should be taken seriously and professionally. It is always good practice to have an eviction attorney help the property owner and / or manager through this process.
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