by Bill Heikkila
Why are you going to court?
I can only think of two reasons: (1) to get a deadbeat out of your property and (2) to get a judgment against him so you might have a chance of getting some of your money back at some point in the future. Some of the reasons that you don’t want to go to court: (1) the tenant has really made you angry and now it’s payback time, (2) this is one way to get him to pay the rent, (3) you want to ruin his credit, or (4) you don’t like “his kind” or his lifestyle. Don’t bother going to court in those cases, you’re just wasting your time and the judge’s, and you may in fact end up a loser in circumstances like those.
The reverse of the above point is when you keep putting off the eviction because you think you’re going to get the rent tomorrow.
Maybe the tenant is encouraging that kind of thinking, but let me assure you that it ain’t going to happen. If you have a new tenant and he starts off paying late, he is going to take whatever you give him — he will keep paying later and later until the next thing you know, he is two months behind. My personal guideline is never let a tenant get more than a month behind, because you are not going to see any more money from him once that happens, regardless of what kind of promises he is making you. Your state will dictate when you can proceed with an eviction, but don’t delay in the hope that money is magically going to show up in your mailbox. It won’t.
Make sure everything you have done up to the time you file the eviction paperwork is legal and follows the tenant-landlord laws of your state.
If you don’t know, you better find out before you have a tenant who is a candidate for eviction. Make sure your lease is legal. Example: in my state, Georgia, a landlord cannot delegate to the tenant responsiblity for maintaining the property, even if he is offering reduced rent in return. Many people don’t know this and write leases all the time stating that the tenant is responsible for maintenance. If you are unsure about the legality of your lease, be sure you have a severability clause in it.
Have your paperwork pertaining to this case organized
(Make sure you have paperwork!) and make sure you have everything you might possibly need with you in court – rent receipts, the lease, all notices given to the tenant, the move in report, any notices received from the tenant, photos, etc.
Review your file several times before you go to court.
Be able to CONCISELY review the case without looking at the paperwork.
If this is your first time in court, or if it has been a long time since you have been (lucky you!), take the time to attend a session before your case comes up on the calendar
You will get to see how the judge handles his dispo cases, and you may pick up some ideas about how he likes to see the case presented
Dress professionally.
Chances are your tenant is going to show up in a T-shirt and baseball cap. Make the impression on the judge that you are a professional. It matters.
Don’t panic if your tenant shows up with a lawyer.
It rarely happens (been struck by a meteor lately?) , but when it does the judge is not going to let the lawyer start acting like Perry Mason (does anyone remember him?) – he is going to limit what the lawyer can get away with and keep the playing field level.
Don’t try your case in front of the tenant before you go to court.
This means don’t tell him beforehand what you are going to do to him and how hopeless his case is in an effort to get him out of the property prior to the court date. You are just helping him prepare to defend himself in court. In fact, the best policy is to avoid any contact with the tenant between the time he is served and the time you show up in court, because that avoids him complaining to the judge about harrassment, and judges do not like to hear that tenants have been harrassed. In fact, if you are hoping to get the tenant to move out before the court date, your total silence will probably have the most unsettling effect on him. If he contacts you, respond in writing.
Keep your answers short (and it goes without saying — truthful)
Don’t add anything that the judge doesn’t ask you and don’t ramble. Don’t get into things that have no bearing on the case or things that aren’t on trial. Speak clearly and respectfully. The judge is going to be there all night hearing many cases – he appreciates you being respectful of his time. Example: don’t feel the urge to say something like: “I had a bad feeling about him the first time I met him.” A statement like that would put you right down there with the tenant on the judge’s Idiot Meter. (Yes, the judge has probably already decided that the tenant is an idiot because the tenant has allowed himself to become a defendant in an eviction case.)
You can anticipate some of the judge’s questions and prepare your answers ahead of time.
Obviously, he is going to ask you to state your case as an opening, so you should practice by standing up in front of a mirror and reciting in a concise (but fully explained) manner why you have hauled this worthless tenant into court. You can probably also anticipate some of the claims that the tenant is going to make in his defense and have answers ready. For example, the tenant usually claims that the premises are in bad repair. Your answer would be to pull from your file the move-in report and present that the judge, with the explanation, “Your honor, I am quite surprised to hear that. As you can see from the move-in report that Mr Lucky Tenant signed just three months ago, the premises were in excellent condition, and since I have had no notices from him regarding any subsequent problems (and your honor, my lease specifies that all notices are to be given in writing), I cannot imagine what he is referring to…”
Tenants being evicted don’t have much imagination.
You may take it personally when the tenant starts attacking you or your property, but how many times do you think that judge sitting up there has heard that story? He may have already heard it a few times today. Your job is to remvoe any doubt he may have regarding which one of you is telling the truth.
Keep in mind that the judge knows nothing about your case until you and the defendant start presenting the case.
He may have read your Statement of Claim just before he asked you to present your case, but he is going to make up his mind solely on what he sees and hears from you. This is why paperwork and documentation are so important – a large percentage of the cases a judge hears in night court are two guys arguing with not one scrap of paperwork between them, so judges love it when someone shows up with real documents. This includes photos if the issue is the condition of the premises.
Do not address the tenant directly when in front of the judge, even if the tenant starts talking to you
Just keep looking at the judge and wait for him to directly address you. Once your case is being heard in front of the judge, ALL of your communications should be only with the judge and never with the tenant
The judge may want to offer you some compromise
Consider possible compromises that he may offer (this is another benefit of going to a session of court prior to your case) so that you won’t be blindsided. For example, the tenant may offer partial payment in court and offer a payment plan for the balance – the judge may ask you if that is acceptable, so you should consider ahead of time whether you would be willing to do that and for what amounts. (By the way, if you’ve reached the point where you are in court with a tenant, I don’t think any payment plan short of 100 percent of what’s owed is acceptable.) Keep in mind that you may reject an offer of compromise, but the judge may overrule you (that’s why they’re sitting up there and you’re standing where you are…).
If the amount of rent owed is in dispute, the better your records look, the better off you will be.
If you have a receipt book with every rent payment recorded sequentially and there are 15 payments received on the date the tenant claims to have paid you, but his is not among them, the judge will give that considerable weight (in your favor). Printouts of ledgers are also good. Remember, you are a professional landlord, not some guy who is renting his house out because he couldn’t sell it. (I am right about that, aren’t I?)
Generally, you don’t need witnesses in a dispo case, but witnesses carry a lot of weight in court.
So if your tenant shows up with a witness (not counting his mother or girlfriend – they don’t carry the same weight as a real witness), you might be at a disadvantage. But you might not if the witness is also wearing a T-shirt and baseball cap.
If part of your case is based in the condition of the property – tenant failing to keep his property clean, junk car, etc., then photos are good, but the tenant may say “that’s not my house.”
If you can produce a witness who will testify that they drove by the premises with you and saw you take the photos of 123 Main St, any such argument on the tenant’s part would be refuted. In a case like this, you will probably know ahead of time if the tenant is going so difficult that you’re required to have a witness to back up key points of your case. You know ahead of time because you’ve been dealing with the guy already and you see the signals.
Some courts will mandate that the landlord and tenant have to try to settle the matter prior to their case being called.
Let the tenant do the talking. This is not the time to tell him what a bad tenant he has been. If he wants to tell you what a bad landlord you have been, just listen and move on – don’t waste your time arguing with the person. Know before had what you would settle for and don’t settle for less. You don’t have to settle, either – if you stand up before the judge and say “We weren’t able to reach any agreement, your honor,” he’s not going to count any points off. In fact, you may walk out of the courtroom with the tenant and tell him, “I’m not interested in settling” – that perfectly OK, but keep in mind that there’s nothing to be lost by hearing what he has to say – as I said before, he may try his for you right then.
If you reach a settlement before your case is heard, the judge will issue what’s called a “consent judgment,” which means that if the tenant lives up to what is in the judgment, it won’t appear in the public records as a real judgment.
If he doesn’t live up to it (they rarely do), then you can convert the consent judgment into a “real” judgment and fi fa. If you get a consent judgment, make sure the tenant understands that point. It shouldn’t appear on his public record unless he fails to uphold his end of it. Unless he’s already got a string of judgments recorded against him (surely you didn’t rent to someone like that…) then this should matter to him.
Don’t get emotional, even if the tenant attacks you or even if the judge rules against you.
If the judge rules against you, you likely have a right of appeal to a higher court, probably a state court. That’s a whole ‘nother chapter, though. But if you are prepared and conduct your yourself professionally and act in an organized manner, you probably aren’t going to lose, because your tenant isn’t going to do any of those things.
Win or lose, you will be better prepared for the next court date