Many landlords believe lots of things about the eviction process that in most cities and states are simply not true. What follow are eight common misconceptions.
1. Common Misconception: A landlord can have police throw a tenant out or arrest him, if he or she doesn’t pay the rent or get out when the landlord tells him or her to.
Truth: A tenant cannot be arrested or jailed for not paying rent. The police will remove a tenant from the rental unit only if he or she has committed a crime or if a judge (after an eviction hearing) has ordered the tenant to get out. Failure to pay rent or to get out when the landlord says so are not considered crimes by anyone—except landlords, of course.
2. Common Misconception: The landlord must have a good reason in order to evict a tenant.
Truth: In a month-to-month tenancy, which is what most tenants have—the alternative is a tenancy for a specific period of time, such as one year—the landlord can evict a tenant for no reason or even for a bad or mistaken reason in most cities and states, as long as the reason is not illegal discrimination (race, religion, children, nationality, marital status, disability) or illegal retaliation (complaints about lack of repairs, for example). In other words, the landlord can evict the tenant for such reasons as the color of his car, for not smiling enough, or if he believes without proof that the tenant broke some rule or did something else wrong.
3. Common Misconception: If a tenant is pregnant or has young (or even any) children, that tenant cannot be evicted.
Truth: Being pregnant or having young children (or any children) is not grounds for preventing or delaying an eviction.
4. Common Misconception: If there is a good reason why the tenant does not have the rent money, the tenant cannot be evicted for nonpayment of rent.
Truth: Inability to pay the rent is not a legal defense, unless, of course, the landlord caused the inability. Even if a tenant has become disabled and unable to work, lost a job, lost a welfare check, or had money stolen he or she can still be evicted.
5. Common Misconception: If the tenant has been trying to move out but can’t find a new place, the eviction-court judge will not make the tenant get out.
Truth: Inability to find a new place is not a legal defense, and the judge will order the tenant to move out—even if it means that the tenant will become homeless. Just think, why might a tenant who is about to be evicted have a problem finding a place to live?
6. Common Misconception: If the tenant goes to his or her eviction hearing, the judge will automatically give the tenant more time to move.
Truth: Sometimes, if there is a truly sad situation (a health problem, young children), the judge may ask the landlord to give the tenant extra time. Rarely will the judge require the landlord to give extra time. Most often the judge knows that the landlord still has to wait several days for the Writ of Execution and the sheriff to remove the tenant.
7. Common Misconception: If the tenant gets or gives a 30-day termination notice, the tenant does not have to pay rent during the 30-day period.
Truth: The tenant’s rent obligation continues for each day the tenant is in the rental unit through the 30-day period even though the landlord (or the tenant) has given a termination of tenancy notice. The tenant may need the rent money in order to move to a new place. But if the tenant is obligated to pay for occupying the property as agreed.
8. Common Misconception: The judge can make the tenant pay any unpaid rent at an eviction hearing.
Truth: The only things a landlord can get at an eviction hearing are: 1) a judge’s order (called a judgment) that the tenant get out on or before a specific date and time, and 2) a judge’s order that the tenant pay the landlord for the landlord’s court costs, prevailing party fee, and attorney fees (if any); and even that’s not applicable in every state. If the landlord wants to make the tenant pay any unpaid rent, the landlord usually will have to sue the tenant in a separate lawsuit, often in Small Claims Court, for a judgment for the rent money.
As Josh Billings is reported to have said, “The trouble with people is not that they don’t know but that they know so much that ain’t so.”