The Most Common Way Landlords Lose an Eviction
March 3, 2016
By Robert L. Cain
Ben and Bertha Bad Tenant were ecstatic. They were so ecstatic that they danced around the room to “Something New” by Axwell and Ingrosso and turned it up loud. But this was nothing new. They had just received an eviction notice from Larry Landlord because they hadn’t bothered to pay rent for three months. Ben and Bertha had been through this many times before, and most times had won the eviction. This time Larry handed them the trifecta. They figured they would get free rent for at least a month and maybe more.
Larry had committed three errors when he sent Mr. and Mrs. Bad Tenant the eviction notice. We’ll look at those here so other landlords can avoid any of the three errors Larry made.
The first error that resulted in Ben and Bertha’s glee was that Larry used an old form. That in itself would mean they would win the eviction. Larry wanted to save 50 cents, so he used the form he had bought five years earlier from Office Depot. And even that was a little hard to read because Larry had copied it so many times. Even five years before, though, it wouldn’t have worked because the form was in conflict with the state law where Larry’s rental property sat. But even if it had been legal five years before, it most likely would not have been in the present because the state legislature had changed the notification laws in the Landlord-Tenant Act twice in that time. If Larry had bought the latest form from his state rental owners association, he would have served a legal notice.
But there was another serious error. The rental agreement that Ben and Bertha had signed when they rented from Larry was a free one Larry had downloaded from the internet 10 years earlier. That one had 11 violations of Larry’s state law and the Fair Housing Act. Ben and Bertha knew the rental agreement was illegal when they signed it, so they figured they had a free pass even then. The judge wouldn’t think too highly of it, either.
I have examined free notices from the internet. One notice I printed out had 29 clauses that could or did violate some state law or the Fair Housing Act. That “free” form could cost a landlord more than $2,000.00 in a lost eviction.
The second error that made Ben and Bertha ecstatic was the address on the form. Ben and Bertha lived at 1234 Main St., Apt. 7. But the form Larry sent lacked the apartment number. What with Ben and Bertha having been around the block with evictions several times before, they knew that their attorney, Bad Tenant Barney, would immediately bring that omission to the attention of the judge and the judge would throw out the eviction. Had Larry taken the time to write the number 7 on the (incorrect) form where there was space for “Apartment Number,” he would have had the full address and nothing for Bad Tenant Barney to bring to the court’s attention (at least for that).
Add to that the delivery error. Larry had posted the notice on the door to Ben and Bertha’s apartment. State law where Larry’s property sat permitted that but only if the notice was also mailed to the offending tenant. Larry didn’t bother spending the 45 cents (plus a 5 cent envelope) it would have cost to mail the notice. Besides, Larry was out of stamps. And besides that, there is the moot point that for mailing requirement. Landlords were required to add three days for delivery. Not every state law has those restrictions, so landlords would do well to check their own laws to see what their state requires for notice. Some are far more landlord friendly, some far less so.
But Larry was in such a toot to write something else on the form that he didn’t bother to check that he had filled in all the required spaces. After three months of no rent and 67 excuses why the rent wasn’t paid, Larry was mad and he wanted to make sure that Ben and Bertha knew it. So he wrote, “I’VE HAD ENOUGH OF YOUR LAMEBRAINED EXCUSES AND LIES, YOU DEADBEATS.” That’s the major reason Ben and Bertha danced around the living room for joy. If someone adds extra words to a notice, the notice becomes null and void. Larry should have known better, but as he pointed out in court, “I’ve been a landlord for 20 years, and no tenants had ever complained before. They just moved.” But then again, he had never run into professional bad tenants like Ben and Bertha before.
Eviction service pros tell me the most common way a landlord loses an eviction is bad form and bad service. Most times the bad tenants don’t hit the trifecta as Ben and Bertha did, but it only takes one error to earn a “win” for a bad tenant.
The point is, everything has to be perfect, all the i’s dotted and t’s crossed, or the notice may be thrown out by the judge, which means there’s no notice and, hence, no eviction Bad tenant lawyers are expert at immediately spotting errors such as those Ben and Bertha were so jubilant about. Depending on the state or city and the predilections of the judge, a bad tenant can get up to three months free rent because of those mistakes.
We don’t want to be like Larry. Larry lost, but we don’t have to. Proper form and service are essential to an eviction that gets bad tenants out.