How to Lose an Eviction

By Robert L. Cain, Copyright 2024, Cain Publications, Inc.

Losing an eviction starts when you send a notice to your tenant demanding that he or she pay the past‑due rent or move, but you make a mistake and lose the eviction. One or more of four errors bite landlords and guarantee a lost eviction.

Bad Form

Bad or incorrect form tops the list. You don’t use a current, legal up-to-date form that conforms to state and local law. Best place to get a legal form is from your apartment, rental owners, landlord, or multifamily housing association. Sometimes they sell forms only to members. Join. It will pay for itself. Don’t even think about getting a form from an office supply store or even worse free from the internet. Those often aren’t even legal and will result in a lost eviction.

The dates on the form must be correct: the date you mailed (adding the appropriate number of days, if any, required for delivery) and the date by which the rent must be paid or they have to move. To get the number of days required, consult your state’s Landlord/Tenant Law as to when a notice becomes effective. When do you start counting days? Do you start counting them as soon as the notice is delivered? If so, how do you determine if it has been delivered? Maybe you start counting the day after the notice is delivered. Do weekends and holidays count?

You won’t know any of that unless you follow your state’s Landlord Tenant law. And possibly that might not even be what happens in practice. Do judges count weekends? In one city in a county, some judges may count them and some may not. Both have a valid legal reason for doing what they do. It doesn’t matter what you think the law is because in their court rooms, they are the law. It’s okay to give too much notice, but not too little.

Below is a chart of several different scenarios for the delivery of a three-day notice. To see the chart, go to: http://cainpublications.com/wordpress/?p=450 One set is where weekends and holidays count, another is where they don’t. As you can see, in some circumstances it can take up to eight days for a three-day notice to take effect. See the discussion of “Bad Service” below.

Suppose you send a three-day notice to pay up or move on the first of the month that is delivered on the fifth of the month. Can you start counting from the fifth, or do you have to wait until the sixth. Does the tenant have until the end of the day on the seventh or the end of the day on the eighth to pay up or move? Your state’s Landlord/ Tenant Law will tell you. Your landlord or rental owners association can provide information about how to calculate that according to where your property is.

Be sure address of the property is correct, including the apartment number. Even though everything else on the form except the apartment number is correct, it can mean the eviction gets thrown out. Courts bend over backwards to protect the poor, ignorant, persecuted tenant from the evil landlord. Judges make you start over.

Check the form carefully. Is everything filled in that’s supposed to be? If any part is missing or incorrect, a judge will probably rule against you in eviction court and your bad tenant gets to stay.

Bad Service

If you hand deliver a notice, it must be given to the tenant or a responsible adult, not a three-year-old. The notice is not considered delivered if the person to whom you gave it could have no idea of its importance. Hand it to the tenant him or herself.

Even imagine handing it to your tenant’s teenager. She comes to the door with ear buds in, texting on her smartphone, taking the notice from you and disappearing. A couple of weeks later when the tenant gets the summons to go to court, they’ll say “we never got a notice.” Then their teenage daughter remembers, “Oh, yeah, the landlord came by the other day and gave me something. I’ve got it in my room somewhere.” Possibly the tenant mailed the check and it got lost, or simply forgot to mail it. The result is that you have spent money filing an eviction, caused yourself aggravation, and created hard feelings with someone who might be a tenant worth keeping.

Write Something Extra on the Form

You’re angry. That deadbeat tenant hasn’t paid the rent again, and just to get your digs in you write some snide remark on the form. Common things might be: “even if you pay this, you’re out!” or “you know when the rent’s due, deadbeat!” Keep the editorial comments to yourself. The judge will see the comments you wrote and let the tenant stay, just watch.

Get the Dates Wrong

Suppose you send a 30‑day (or whatever the time is in your state) no-cause notice to vacate. At the end of 30 days, they haven’t moved. You file an eviction, but the judge says you did it wrong and the tenant gets to stay. The problem: you sent it in the middle of the month, and all notices for termination of tenancy must coincide with when the next rent payment is due. Check state law.

For example, suppose you want a tenant to move out on July 1. With a 30-day notice, the tenant would have to receive the notice no later than June 1.

That might not even be enough. If you send it Certified Mail, the tenant may not be home to sign for the notice and would have to go to the post office to pick it up. The letter carrier will try a couple more times. Suppose it’s the fifth of the month before the notice ever gets to the tenant. Will a judge listen to him when your tenant’s claims that he wasn’t properly notified because he had only 25 days’ notice? Maybe, maybe not, it depends on the judge.

By far the best way to serve notices on tenants is by hand delivery (see above) or posting on the door of their unit.

Bad form and bad service by far make up the most common mistakes landlords make when evicting a tenant. Check everything twice, plus have someone else check, too. Get it right and get the tenants out.

Sponsored by Zip Reports where they do employment and rental screening. Contact Robert L. Cain at bob@cainpublications.com