Your commercial tenant did not pay the rent. You have heard that things are not going very well for them, but now it shows. As the property manager, it is your duty and obligation to resolve the issue as quickly as possible. When the tenant has not paid 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 his company, the unlawful detainer action should go smoothly and the landlord or landlord should prevail.

The first step is to resolve the rent payment issue if possible.

If possible, the property manager should make every effort to get the tenant to make rent payments and update their lease. If this means waiting a few more days for payment, perhaps this would be the best course of action instead of filing a lawsuit. Your individual company’s policies and best practices will dictate this action, but it would be best for all parties to settle prior to litigation.

three day notice redacted

If a payment is not made, a ‘three day notice to pay or vacate’ must be duly prepared and served on the tenant. This notice must be in a specific legal format. A business owner, landlord, or property manager can choose between different types of 3-day notices; 1) specifies the exact amount of rent due; or 2) estimates the amount of rent due, typically when a tenant pays a percentage rent.

If the lease requires the tenant to pay separate rent and other amounts for triple net or CAM charges, the property manager should obtain appropriate advice as to 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 estimated rents and CAM charges, this can lead to a tenant victory in the withholding action. illegal. This would also possibly entitle the tenant to attorneys’ fees. It is essential to be correct in this step.

The Three-Day Notice Must Be Served Correctly and Legally

The tenant is considered served when the three-day notice is personally served, or when a responsible person is personally served at the place of business on the premises. In the event that no one is available, the landlord or property manager may post the notice to the front door of the business premises and, at the same time, send a copy of the three-day notice by certified mail, return receipt requested. receipt. The landlord or property manager must then prepare a properly formatted ‘proof of service’ that states in the relevant part that the ‘three-day notice’ was served on the tenant, or describes the method of delivery.

The property manager or landlord has a three-day waiting period for the service to take effect

After successful delivery of 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 chooses to pay all rent due at this time or correct any outstanding violations of the terms of the lease, the eviction process ceases. If the tenant makes a partial payment, the landlord or property manager may accept the partial payment, but they must notify the tenant that they are not waiving their rights to proceed with an eviction.

In the event that the tenant has violated the lease through some criminal act or conduct, then the eviction process continues.

At the end of the three-day waiting period, the landlord or property manager may continue to file and serve a complaint and summons.

Summons and complaints are prepared and served

In the event the tenant has not cured their outstanding rental violation, or has failed to cure any other violation of which they have been notified, then the landlord or property manager may proceed to file and serve the summons and complaint to the tenant. A third party not involved in the action, usually a registered process server, can be hired for a fee to serve the documents on 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 the property is then served with a three-day notice and proof of service.

Technical errors can cause delays

If the landlord or property manager has undertaken this process themselves, there is a chance that they have made a technical error in the processing, preparation, notification, and filing of these documents. There are several technical areas of the law that must be followed or will result in substantial delays if they do not. A tenant who hires a lawyer will likely find these technical errors, if the court does not find the errors. This is likely to result in delays, which means money for the property owner. The best course of action in these situations is to hire an eviction lawyer 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 served tenant has five days to oppose the eviction. If the substituted service was used, the tenant would have fifteen days to file a brief in response to the action. If the tenant does not object to the eviction, the landlord or property manager will request a default judgment for possession of the property. This will most likely be granted and the case will be referred to the sheriff’s office for tenant lockout (see below).

If the tenant contests the eviction

If the tenant hires a lawyer 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 judgment will be set. If the landlord wins, the tenant will have to pay rent and other losses, likely including attorneys’ fees. If the tenant wins, the landlord may have to pay attorneys’ fees. In this situation, a property manager really needs to be represented by an attorney.

The Landlord or Property Manager has the Right to Block the Tenant

Assuming the landlord wins, the county sheriff will post a ‘Five Day Notice to Vacate’ on the tenant’s door or business driveway. On the sixth day, the sheriff meets with the owner or property manager at the property. The landlord or property manager then receives a receipt of possession of the property. If the tenant is still there when the sheriff arrives, the sheriff will physically remove the tenant. The landlord or property manager will now have a locksmith come in and change the locks to keep the tenant out.

Notice to Claim Property

If the tenant is leaving personal property, there are state statutes that deal with this specific issue. The landlord 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 belief of abandonment” 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 tenant belongings so that there is no dispute later.

It is not legal for a landlord or property manager to hold 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 landlord or property manager may 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 landlord or property manager must auction it off through a public sale held after a duly posted notice with the proceeds turned over to the county, less expenses.

Conclusion

Although this article has briefly referred to this process, it must be seen that it is not a simple process, but a process that must be taken seriously and professionally. It is always a good practice to have an eviction attorney assist the landlord and/or property manager through this process.