Ready for Self-Help Eviction, but I accepted a rifle as deposit!!

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Ready for Self-Help Eviction, but I accepted a rifle as deposit!!

Jason V.
MS 路 Member since 2015 路 56 posts 路 20 votes

Definitely many legal issues at play here, but I'll give my side of the story before starting this process to see what you guys think (besides the fact that I'm incredibly stupid & naive for breaking numerous rules against renting to friends, co-workers, etc.)....

- A new [at that time] co-worker heard about an unoccupied house I was essentially using for storage purposes only, then tells me he'll pay me to rent it out.  I did NOT want to do it, but he gave me a sob story that his landlord was kicking him out in a couple days (for shooting fireworks on July 4th, which was against the terms of his lease), and he really didn't have my choice as to anywhere else to go.  Plus he JUST started working here, making relatively decent money compared to most other jobs in the area.

- I considered the net gain was rather significant, since I was still paying for running water and power (for alarm system) at this house that I wasn't even occupying.  So even if he were to screw me over, it couldn't be any worse than I had been doing to myself for the past couple of years.

- Guy's giving me plenty of red flags... but whatever, I'm a nice guy, right?  He can't afford to pay the deposit, so I tell him I'll work with him, even writing in special verbage that he won't have any rights of a tenant until he pays the deposit in full (Legal?!?)  17 months later, it's still not paid in full!!  But he has given me $650 of the $800 deposit so far ($100 of that $650 was actually me paying him first installing a dishwasher that wasn't there when he first signed the lease!).  The only thing he was able to provide me on Day 1 of the Lease was a rifle that I valued at around $400.  He quickly gave another $400 cash, so I *somewhat* considered the deposit paid in full to the point I wasn't going to nag him about it... but he has been unable to pay the remaining $150 to get the damn rifle back!!!

-He was unable to cover the deposit for utilities, as well, so I told him for an extra $50/wk (as he pays weekly), that should cover water & power.  This never got written into the lease, but he did paid this full, weekly amount on time until a few months back.

- Fast forward to around Thanksgiving of last year, and his mother passes away. He had to take a LITTLE time off work and was at first unable to pay, but then decided he's gonna take a loan against his 401K to pay me everything but 1 week's rent. We had some "big" bonuses ($1400 after taxes) from our work coming at end of 2021 and the last bonus was received today this week.

- About a month ago, he tells me he's depressed since his mom passed, his therapist has upped his meds, and now he can't function properly.  So because of these bonuses that I know are coming, I tell him I'll work with him missing A SINGLE WEEK of work.   I just find out a few weeks ago that he's missed THREE weeks of work.

- I'm waiting for this bonus check so that I can start the eviction process, right?  Well he calls me today and tells me that he expected the bonus to be a lot more, but now he can only send me $700 today (while he STILL owes me about $1,000!).  Not only that, but he tells me that his therapist has given him a one month long work excuse, which will allow him to claim short term disability, which is like *maybe* $20/wk over what the rent + utilities are.

- Needless to say, I have to evict the guy.  He was smoking in the house before ("only in the bathroom with window opened") and yet again even more recently ("only with the front door cracked while it was freezing outside").  And to top that off, I've told him numerous times that he can't have pets.  Last time I saw him in person, tho, he showed me a pic of this dog that "his girlfriend" just bought.  Picture was of the dog taken at MY house!! I give him the benefit of the doubt... maybe the pup really was only over there for a couple hours or so. . . .  HOWEVER, upon replacing the air filter maybe 2 weeks ago, I see there's A TON of dog hair on the old filter.  STRIKE SEVENTEEN!!!

- I live in a state where self-help eviction is permissable, so long as it's written and agreed to in the signed lease.  Luckily, it is INDEED in the signed lease.  (Definitely Legal, but is it recommended?!? Why or why not?) Should I just pay some movers to toss his **** out 3 days after receiving his Notice to Pay / Cure (unfortunately he won't be leaving for work anytime soon, however... so that could be an isssue)?... Or should I go the formal eviction route, waiting for a judge's orders?

- My last question pertains to the rifle that I accepted as deposit.  (Legal?!?) The lease identifies that a rifle was accepted in lieu of deposit and would be returned as soon as actual cash deposit was paid in full, but he still hasn't paid the cash deposit in full!  The lease does not mention exact make, model, serial # of rifle... nor does it mention any detailed steps toward "officially" changing hands of ownership if the cash deposit is NEVER received in full.  Is this something I can expect to keep?  It's in the lease, just certainly not as detailed verbage as I'd like to see after knowing how the future actually played out.

- Long story short, I was on the fence as to whether I should continue renting or just selling the house, but this whole experience is definitely swaying me toward selling, even tho I will get hit with a good bit of capital gains tax now that my wife just started working at the beginning of this year (pushing us to the next tax bracket, & also causing those extra gains to likely cut into the child tax credits for our 3 ni帽os). Wish I could've forseen the future, but still... I just don't want to deal with the headaches & drama anymore.  Regardless, there's still LOTS more headaches I'll have to work / fight thru whether I sell or not.  I feel like it'll only be financially sound to do a "Deferred" Section 1031 Exchange, not a traditional sale.  But that also sounds risky if I can't find a replacement property within 45 days.

Sooo... any suggestions to help minimize my headaches would be most appreciated.  Thank you! 馃檹  I don't think Landlording is for me, but I would certainly appreciate  graceful exit.

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Greg ScottPro Member
Rental Property Investor 路 SE Michigan 路 Member since 2014 路 4k+ posts 路 6k+ votes
4y

Glad that you are accepting responsibility for your side of the problem.  In the scheme of things, you are not in horrible shape here. I've seen other landlords that have had the resident pay nothing for months and end up with a trashed house.  Here are a few comments that I hope help.

Regarding your clause that he has no rights of tenancy until the deposit is paid, not legal in most states.  If he has the keys to the property and occupied it, you probably have to evict him like you would a formal tenant.

With that in mind, hiring a company to haul away his stuff-- very bad idea.  That is how you could end up with serious legal problems and it would be easy for your tenant to sue and have you pay him enough to re-buy all his items.

I would send him a notice of lease violation, worded unemotionally and professionally, that he is in violation of his lease.  I would list his remaining balance, the dog, the girlfriend (who should not be living on your property) and any thing else that is a violation of your lease.  He should be given 10 (or so) days to resolve them or move out.  If he doesn't move out, start the eviction process.

Given all the crazy scenarios you outlined, I recommend you find an eviction attorney to help you.  Most eviction attorneys work at high volume for relatively low cost per eviction.  That is their specialty.  For around $500, you can ensure you don't have more problems later.

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  • Jason V.
    OP
    MS 路 Member since 2015 路 56 posts 路 20 votes
    4y

    Starting to think that simply cutting the power off on the 4th day of him receiving the Notice to Pay, Cure would be a decent move.  Should get him off his *** long enough to realize he's got to start moving and no longer has time to play Xbox or Playstation or whatever.

    0Reply
  • Joe SplitrockPro Member
    Moderator
    Rental Property Investor 路 Sioux Falls, SD 路 Member since 2015 路 9k+ posts 路 18k+ votes
    4y

    I would not recommend self-help eviction, given that a Federal judge ruled that Mississippi law unconstitutional in late December 2021. Even if it is in your lease and was legal at the time you wrote it, you cannot violate current law. Go to court and get a proper eviction order. 

    https://mississippitoday.org/2...

    As far as the rifle, you accepted that as part of the the security deposit with value of $400. So you currently hold $650 cash and $400 rifle, making his security deposit value at $1050. If you keep the gun, the value is $400 because that is the value you accepted it at. If you evict him, you can keep the the deposit up to the value of what he owes you. You can only charge him rent for days he occupies the property. You can also deduct damage or cleaning as long as it isn't normal wear and tear items. You will need to itemize the deposit and deductions, then send him a letter detailing what he gets back or what he owes. Say for example that he owes you $300 in rent and leaves the property with $100 cleaning bill. You take $1050 and subtract $400. He is owed back $650, which means you would return the gun plus $250. 

    I would talk to him and explain that you need him to leave. Work out a deal where he leaves and you agree to return the gun. This will be easier and cheaper than going to court. Let him know that having an eviction on his record will make it difficult to rent in the future. If he is not agreeable, proceed with court eviction. I would use an attorney.

    1Reply
  • Greg ScottPro Member
    Rental Property Investor 路 SE Michigan 路 Member since 2014 路 4k+ posts 路 6k+ votes
    4y

    Glad that you are accepting responsibility for your side of the problem.  In the scheme of things, you are not in horrible shape here. I've seen other landlords that have had the resident pay nothing for months and end up with a trashed house.  Here are a few comments that I hope help.

    Regarding your clause that he has no rights of tenancy until the deposit is paid, not legal in most states.  If he has the keys to the property and occupied it, you probably have to evict him like you would a formal tenant.

    With that in mind, hiring a company to haul away his stuff-- very bad idea.  That is how you could end up with serious legal problems and it would be easy for your tenant to sue and have you pay him enough to re-buy all his items.

    I would send him a notice of lease violation, worded unemotionally and professionally, that he is in violation of his lease.  I would list his remaining balance, the dog, the girlfriend (who should not be living on your property) and any thing else that is a violation of your lease.  He should be given 10 (or so) days to resolve them or move out.  If he doesn't move out, start the eviction process.

    Given all the crazy scenarios you outlined, I recommend you find an eviction attorney to help you.  Most eviction attorneys work at high volume for relatively low cost per eviction.  That is their specialty.  For around $500, you can ensure you don't have more problems later.

    2Reply
  • Jason V.
    OP
    MS 路 Member since 2015 路 56 posts 路 20 votes
    4y
    Quote from @Joe Splitrock:

    I would not recommend self-help eviction, given that a Federal judge ruled that Mississippi law unconstitutional in late December 2021. Even if it is in your lease and was legal at the time you wrote it, you cannot violate current law. Go to court and get a proper eviction order. 

    https://mississippitoday.org/2...

    As far as the rifle, you accepted that as part of the the security deposit with value of $400. So you currently hold $650 cash and $400 rifle, making his security deposit value at $1050. If you keep the gun, the value is $400 because that is the value you accepted it at. If you evict him, you can keep the the deposit up to the value of what he owes you. You can only charge him rent for days he occupies the property. You can also deduct damage or cleaning as long as it isn't normal wear and tear items. You will need to itemize the deposit and deductions, then send him a letter detailing what he gets back or what he owes. Say for example that he owes you $300 in rent and leaves the property with $100 cleaning bill. You take $1050 and subtract $400. He is owed back $650, which means you would return the gun plus $250. 

    I would talk to him and explain that you need him to leave. Work out a deal where he leaves and you agree to return the gun. This will be easier and cheaper than going to court. Let him know that having an eviction on his record will make it difficult to rent in the future. If he is not agreeable, proceed with court eviction. I would use an attorney.


     "That law" you're referring to is definitely not the self-help eviction law.  That landlord was definitely going a tad far by forbidding the tenant from getting stuff that was right there in front of their faces.  True self-help eviction requires you (or "movers", as I'm referring to them) to take the tenant's property and place it outside where he is ABLE to recover it, all "without disturbing the public peace".  I'm not taking his property away from him or moving it somewhere inaccessible to him.  Had the landlord in that federal case done what I'm doing, I don't believe there'd have been any issue at all.

    The tenant must be given ample notice in the lease and then thru further relevant notices... but I feel like I'd rather take my chances based on what the law says and let The State argue about it later.  $0 self-help sounds better to me than $500 attorney fees.

    I like Greg's idea about giving him a full 10 days to move, however, instead of just 3 days like I was originally planning.  No need to be cruel and inhumane... but I will definitely provide ample opportunity for him to get his stuff out, making him well aware that it will be moved to the yard if he doesn't take care of it himself.

    P.S. - The gun wasn't actually given a value of $400 or any numerical value in actuality (just that it would be returned when full deposit was finally received), I'm just saying that in my eyes alone, I'd guesstimate that it's worth about $400, which is why I haven't hassled him that much about being short $150 on the deposit.  As of right now, I'm not doing so bad, but definitely see this whole thing just going downhill very quickly based upon "past performance".  Repeatedly trying to "game the system" (smoking inside as if the bathroom window being open was good enough, the front door being open was good enough, having pets, etc., getting on short term disability for SEVERAL weeks because your therapist doubled your dosage, etc.)... is just NOT what I was signing up for.

    0Reply
  • Scott Mac
    Austin, TX 路 Member since 2019 路 5k+ posts 路 5k+ votes
    4y

    Your workmate is living beyond his means.

    Hi Jason,

    If you boot him, and you don't want the rifle, maybe offer to sell it back to him for $400 when he gets his life in order.

    I'm guessing pawn value is probably $80.

    Maybe he can then use it for "shootin' at some food" and save on his grocery bills (seriously).

    Good Luck!

    0Reply
  • Kathleen OsbornePro Member
    Rental Property Investor 路 Roanoke, VA 路 Member since 2020 路 70 posts 路 50 votes
    4y

    I can't comment on the self-help eviction as I'm not aware of that in VA.

    As for selling vs. keeping, I'd get the guy out along with all the smoke and dog smells, paint with Kilz, make sure everything is in working order, change the locks and start over with a fresh tenant. Do a credit check and back ground check so you get a tenant that will pay on time every time. 

    With this being a seller's market, you would probably sell your current property quickly. Rolling into a 1031 exchange would probably not go so quickly. Work with what you've got, build more equity and worry about an exchange at a later date.

    Good luck!

    0Reply
  • Susan Authement
    Member since 2022 路 25 posts 路 15 votes
    4y

    -" Guy's giving me plenty of red flags... but whatever, I'm a nice guy, right?"

    I find that says it all right there. Have you ever heard the saying "Nice guys finish last..." ?  Don"t ignore your gut feelings, they are usually right and trying to tell you something. The person who replied about Kiltz paint products is correct. It works miracles. Used it myself before. I also like a inexpensive cleaner/degreaser called "Mean Green" works on most surfaces like trim, doors,kitchens, bathrooms and appliances inside and out etc (It won't remove hard water deposits though). I dont know the legalities of this but im considering writing leases for my rentals so the first 90 days will be a "month to month" lease in which either party can cancel the lease without severe penalties if it isn't a good match. After that 90 days the lease would become long term automatically or they would be offered a yearly lease. That way if they are pigs or refuse to not smoke or obey pet rules it might be easier to get them out quickly, hopefully they also would not be able to stiff me for more than one months worth of rent if they were scamming by couch surfing and not paying rent etc... Like i said though im not a lawyer so im not sure if that is legal, just something i was going to look into for myself. I am also most likely going to use a management company to help me with the "land lording" things. I want to put as many helpful knowledge bearing people between myself and a problem tennant as i can. To me the 10 percent of the rent amount  fee seems reasonable and well worth it .

    0Reply
  • Anthony KingPro Member
    Investor 路 Charlotte, NC 路 Member since 2020 路 236 posts 路 247 votes
    4y

    @Jason V. I would turn this into a hollywood movie, then sell all my houses and quit landlording forever. You should too.

    2Reply
  • Joe SplitrockPro Member
    Moderator
    Rental Property Investor 路 Sioux Falls, SD 路 Member since 2015 路 9k+ posts 路 18k+ votes
    4y
    Quote from @Jason V.:
    Quote from @Joe Splitrock:

    I would not recommend self-help eviction, given that a Federal judge ruled that Mississippi law unconstitutional in late December 2021. Even if it is in your lease and was legal at the time you wrote it, you cannot violate current law. Go to court and get a proper eviction order. 

    https://mississippitoday.org/2...

    As far as the rifle, you accepted that as part of the the security deposit with value of $400. So you currently hold $650 cash and $400 rifle, making his security deposit value at $1050. If you keep the gun, the value is $400 because that is the value you accepted it at. If you evict him, you can keep the the deposit up to the value of what he owes you. You can only charge him rent for days he occupies the property. You can also deduct damage or cleaning as long as it isn't normal wear and tear items. You will need to itemize the deposit and deductions, then send him a letter detailing what he gets back or what he owes. Say for example that he owes you $300 in rent and leaves the property with $100 cleaning bill. You take $1050 and subtract $400. He is owed back $650, which means you would return the gun plus $250. 

    I would talk to him and explain that you need him to leave. Work out a deal where he leaves and you agree to return the gun. This will be easier and cheaper than going to court. Let him know that having an eviction on his record will make it difficult to rent in the future. If he is not agreeable, proceed with court eviction. I would use an attorney.


     "That law" you're referring to is definitely not the self-help eviction law.  That landlord was definitely going a tad far by forbidding the tenant from getting stuff that was right there in front of their faces.  True self-help eviction requires you (or "movers", as I'm referring to them) to take the tenant's property and place it outside where he is ABLE to recover it, all "without disturbing the public peace".  I'm not taking his property away from him or moving it somewhere inaccessible to him.  Had the landlord in that federal case done what I'm doing, I don't believe there'd have been any issue at all.

    The tenant must be given ample notice in the lease and then thru further relevant notices... but I feel like I'd rather take my chances based on what the law says and let The State argue about it later.  $0 self-help sounds better to me than $500 attorney fees.

    I like Greg's idea about giving him a full 10 days to move, however, instead of just 3 days like I was originally planning.  No need to be cruel and inhumane... but I will definitely provide ample opportunity for him to get his stuff out, making him well aware that it will be moved to the yard if he doesn't take care of it himself.

    P.S. - The gun wasn't actually given a value of $400 or any numerical value in actuality (just that it would be returned when full deposit was finally received), I'm just saying that in my eyes alone, I'd guesstimate that it's worth about $400, which is why I haven't hassled him that much about being short $150 on the deposit.  As of right now, I'm not doing so bad, but definitely see this whole thing just going downhill very quickly based upon "past performance".  Repeatedly trying to "game the system" (smoking inside as if the bathroom window being open was good enough, the front door being open was good enough, having pets, etc., getting on short term disability for SEVERAL weeks because your therapist doubled your dosage, etc.)... is just NOT what I was signing up for.


     I don't see in Mississippi law where it states you can self-help evict. I do see a couple websites that reference this, but I would be curious to read the specific statute. The statutes make reference to a judge and court. If there is some wording around "breach the peace", forcibly removing someone and their belongings will breach the peace. Basically if the tenant says, I am not leaving and you can't enter, you will need to leave. You can call the police and the police will do nothing without a court order. Even if you can do something, that doesn't make it the best option. In the end, spending $500 to do something right is often better. 

    https://www.nolo.com/legal-enc...

    https://law.justia.com/codes/m...


    Try to talk it through with him in a friendly manner. I would suggest not throwing his belongings on the lawn or threatening him. I would also suggest returning the gun after he leaves. Somehow I think "you know better" and will do whatever you want.

    0Reply
  • Jason V.
    OP
    MS 路 Member since 2015 路 56 posts 路 20 votes
    4y
    Quote from @Joe Splitrock:

     I don't see in Mississippi law where it states you can self-help evict. I do see a couple websites that reference this, but I would be curious to read the specific statute. The statutes make reference to a judge and court. If there is some wording around "breach the peace", forcibly removing someone and their belongings will breach the peace. Basically if the tenant says, I am not leaving and you can't enter, you will need to leave. You can call the police and the police will do nothing without a court order. Even if you can do something, that doesn't make it the best option. In the end, spending $500 to do something right is often better. 

    https://www.nolo.com/legal-enc...

    https://law.justia.com/codes/m...


    Try to talk it through with him in a friendly manner. I would suggest not throwing his belongings on the lawn or threatening him. I would also suggest returning the gun after he leaves. Somehow I think "you know better" and will do whatever you want.

     Looks like you're correct.  There isn't actually a self-help statute at all!  One site that said that there was a self-help law pointed to this case --> 

    https://cite.case.law/so-2d/63...

    But that interpretation is obviously incorrect after reading the case.  What a bummer.

    EDIT: Actually, after re-reading it... self-eviction is allowed under that ruling as seen here.   No mention of disturbing the peace, just no [threats of] violence, btw...

    "2.

    Not only were landlord鈥檚 actions of lockout not allowed by statute, but case law also prohibited the action. This Court has held that a landlord could not regain possession of leased premises by breaking in or by *389threats of personal violence or the exercise of such violence, but where the lease provided for reentry by the landlord for tenant鈥檚 failure to pay rent, the landlord may exercise such reentry if done so without breaking in, violence or threats of violence. Clark v. Service Auto Co., 143 Miss. 602, 108 So. 704 (1926). In Clark, the lease between the landlord and the tenant included a provision which gave the landlord the right to remove the tenant and take possession of the premises without notice for tenant鈥檚 failure to pay rent. The Court stated that without such provision in the lease the landlord would have been required to follow the statutory process.

    The lease between the landlord and tenant in the case sub judice had no provision which would have allowed the landlord to regain possession without notice and hearing. Since there was no such provision, the landlord should have used the statutory process and not resorted to a self-help procedure."

    0Reply
  • Jason V.
    OP
    MS 路 Member since 2015 路 56 posts 路 20 votes
    4y
    Quote from @Susan Authement:

     I dont know the legalities of this but im considering writing leases for my rentals so the first 90 days will be a "month to month" lease in which either party can cancel the lease without severe penalties if it isn't a good match. After that 90 days the lease would become long term automatically or they would be offered a yearly lease. That way if they are pigs or refuse to not smoke or obey pet rules it might be easier to get them out quickly, hopefully they also would not be able to stiff me for more than one months worth of rent if they were scamming by couch surfing and not paying rent etc... Like i said though im not a lawyer so im not sure if that is legal, just something i was going to look into for myself. I am also most likely going to use a management company to help me with the "land lording" things. I want to put as many helpful knowledge bearing people between myself and a problem tennant as i can. To me the 10 percent of the rent amount  fee seems reasonable and well worth it .


     In retrospect, 10% cut for zero headaches sounds like I steal, but I just don't know if such a property manager exists around here for a landlord with only one rental.

    As to your other ideas about a 90 day lease before a year or longer lease.... there was definitely zero smoke or pets in his first 90 days, so that wouldn't have helped in my situation.  None of this really showed up until after about a year.

    After actually reading the laws, there's definitely 2 things that I would include in Mississippi leases... and that's

    (1) To include that all communications & notices are acceptable if given in email or text messages (we made such an agreement, but it was over text message and NOT a "written" agreement.  It could be argued either way, but definitely better to be explicitly in the lease.

    (2) To automatically swap to a week-to-week tenancy in the lease after the lease term, because this can make evictions for any reason go much quicker.  :-). On a month-to-month lease, the only reason a tenant can be evicted sooner than a month is for non-payment... so a paying tenant that's smoking, has pets, etc. would require an extra 3+ weeks waiting during the eviction process.

    Live and learn.  Definitely read the statutes of your own state BEFORE writing the lease!

    0Reply
  • Joe SplitrockPro Member
    Moderator
    Rental Property Investor 路 Sioux Falls, SD 路 Member since 2015 路 9k+ posts 路 18k+ votes
    4y
    Quote from @Jason V.:
    Quote from @Joe Splitrock:

     I don't see in Mississippi law where it states you can self-help evict. I do see a couple websites that reference this, but I would be curious to read the specific statute. The statutes make reference to a judge and court. If there is some wording around "breach the peace", forcibly removing someone and their belongings will breach the peace. Basically if the tenant says, I am not leaving and you can't enter, you will need to leave. You can call the police and the police will do nothing without a court order. Even if you can do something, that doesn't make it the best option. In the end, spending $500 to do something right is often better. 

    https://www.nolo.com/legal-enc...

    https://law.justia.com/codes/m...


    Try to talk it through with him in a friendly manner. I would suggest not throwing his belongings on the lawn or threatening him. I would also suggest returning the gun after he leaves. Somehow I think "you know better" and will do whatever you want.

     Looks like you're correct.  There isn't actually a self-help statute at all!  One site that said that there was a self-help law pointed to this case --> 

    https://cite.case.law/so-2d/63...

    But that interpretation is obviously incorrect after reading the case.  What a bummer.

    EDIT: Actually, after re-reading it... self-eviction is allowed under that ruling as seen here.   No mention of disturbing the peace, just no [threats of] violence, btw...

    "2.

    Not only were landlord鈥檚 actions of lockout not allowed by statute, but case law also prohibited the action. This Court has held that a landlord could not regain possession of leased premises by breaking in or by *389threats of personal violence or the exercise of such violence, but where the lease provided for reentry by the landlord for tenant鈥檚 failure to pay rent, the landlord may exercise such reentry if done so without breaking in, violence or threats of violence. Clark v. Service Auto Co., 143 Miss. 602, 108 So. 704 (1926). In Clark, the lease between the landlord and the tenant included a provision which gave the landlord the right to remove the tenant and take possession of the premises without notice for tenant鈥檚 failure to pay rent. The Court stated that without such provision in the lease the landlord would have been required to follow the statutory process.

    The lease between the landlord and tenant in the case sub judice had no provision which would have allowed the landlord to regain possession without notice and hearing. Since there was no such provision, the landlord should have used the statutory process and not resorted to a self-help procedure."


     I agree it seems the interpretation stems from that hundred year old court case (Clark V Service Auto). The entire argument here is that you can bypass due process under the law if the tenant agrees to it in the lease. Contract law generally prohibits you from writing contract terms that contradict laws. This also becomes an issue of constitutional due process. This is referenced in some of the case law, but never directly argued or addressed. It appears there is some case law to support an argument, but it is far from a slam dunk. The laws in Mississippi do not support self help eviction so arguing "they don't say you can't do that" is skating on thin ice. Even if you get past the self help portion, you are still stuck with "breach the peace". The "breach of peace" is defined as breaking in, physical violence or threats of physical violence. If the tenant stood in the doorway, you would not be able to physically move them. Touching the tenant or threatening to move the tenant would be considered a threat of violence. If you touch them and they call the police, you could end up arrested for trespassing and assault. You will not be able to show the lease to the police as proof of rights to be on the property. The police will tell you to get an eviction order, which the police can enforce. Most the reference case law seems to involve commercial property, so that adds another factor. The other question could be whether you can put his property on the lawn. Generally when a landlord takes property, they are responsible for storing it and giving the tenant a way to recover such property. Throwing it on the lawn without a court order could expose it to damage and theft. I guess you could argue you never removed it from the property, but what stops him from brining it back inside? Even if you change the locks, he still has a lease. He could break in to his property and legally be inside. 

    I see where this argument stems from, but you will have no support from law enforcement if things go wrong. You are far better to reason with him and get him to willingly leave. If you can't reason with him, then get a court order. 

    One other thing to consider is potential for physical violence. If you push this guy and force your way into his property, what if he pulls a gun and shoots you? I am not familiar with Mississippi laws on "stand your ground", but in many states you are legally justified in protecting yourself and your property. 

    I know you want to save some money, but just be careful. I fear you could turn this into something far worse.

    1Reply
  • Joe SplitrockPro Member
    Moderator
    Rental Property Investor 路 Sioux Falls, SD 路 Member since 2015 路 9k+ posts 路 18k+ votes
    4y
    Quote from @Jason V.:
    Quote from @Susan Authement:

     I dont know the legalities of this but im considering writing leases for my rentals so the first 90 days will be a "month to month" lease in which either party can cancel the lease without severe penalties if it isn't a good match. After that 90 days the lease would become long term automatically or they would be offered a yearly lease. That way if they are pigs or refuse to not smoke or obey pet rules it might be easier to get them out quickly, hopefully they also would not be able to stiff me for more than one months worth of rent if they were scamming by couch surfing and not paying rent etc... Like i said though im not a lawyer so im not sure if that is legal, just something i was going to look into for myself. I am also most likely going to use a management company to help me with the "land lording" things. I want to put as many helpful knowledge bearing people between myself and a problem tennant as i can. To me the 10 percent of the rent amount  fee seems reasonable and well worth it .


     In retrospect, 10% cut for zero headaches sounds like I steal, but I just don't know if such a property manager exists around here for a landlord with only one rental.

    As to your other ideas about a 90 day lease before a year or longer lease.... there was definitely zero smoke or pets in his first 90 days, so that wouldn't have helped in my situation.  None of this really showed up until after about a year.

    After actually reading the laws, there's definitely 2 things that I would include in Mississippi leases... and that's

    (1) To include that all communications & notices are acceptable if given in email or text messages (we made such an agreement, but it was over text message and NOT a "written" agreement.  It could be argued either way, but definitely better to be explicitly in the lease.

    (2) To automatically swap to a week-to-week tenancy in the lease after the lease term, because this can make evictions for any reason go much quicker.  :-). On a month-to-month lease, the only reason a tenant can be evicted sooner than a month is for non-payment... so a paying tenant that's smoking, has pets, etc. would require an extra 3+ weeks waiting during the eviction process.

    Live and learn.  Definitely read the statutes of your own state BEFORE writing the lease!


     Susan, you could probably write in a 90 day, either party can terminate clause. The key with a clause like that is it needs to cover BOTH parties. As Jason said, his tenant was well behaved the first 90 days. You could easily end up with someone being on their best behavior for 90 days and then turn bad. Thinking back on my trouble tenants, none of them were a problem in the first few months. It usually turns bad over time. Someone loses a job and runs into money problems or they stop caring for the property. This seems to happen after the "new house excitement" wears off. They start accumulating junk on the property or stop mowing the lawn. I would argue it would be better to have a 6 month lease term than having 90 day M2M followed by 1 year. Whatever you do, have an attorney review for legality.

    That actually brings up a good question for Jason. Did you have an attorney draft your lease or do you know for sure the lease is attorney reviewed, without the party giving it to you modifying it? If you end up in court, quality of the lease is very important.

    0Reply
  • Joey Wharton
    Colorado Springs, CO 路 Member since 2014 路 57 posts 路 48 votes
    4y

    I'm going to be very honest with you - you've been making one bad emotional based decision after another - in turn creating a convoluted headache. Now you acknowledge he has depression issues and is looking into disability. That potentially just added a whole new layer of complexity. I will tell one thing with certainty - DO NOT TURN OFF UTILITIES OR CHANGE LOCKS OR PROHIBIT HIM FROM LIVING THERE WITHOUT A COURT ORDER OR AN ATTORNEY GIVING YOU THE GREEN LIGHT or you could end up in a world of hurt.

    Every municipality has different tenant/landlord laws. That's why an attorney is your best approach when dealing with evictions when you don't know the full legal implications of your local laws.

    You're asking advice to lessen your headache? Get him to agree to leave in 2 weeks (or whatever is the quickest he'll go) instead of evicting him and cut your losses. He doesn't want an eviction on his credit - get that message through to him. This is your lowest cost, "stop the bleeding now and end the headache" option. Forget about what he owes you, don't get lost in the trees. Evicting could cost a lot more time and money. And you'll end up spending more if you hire an attorney. As long as this guy is in your property you will be dealing with issues daily. Is it worth it?

    Yep land lording probably isn't for you. But you can be a hands off investor. Get yourself a property management company and just collect your checks - whether you keep this place or 1031 into something new is a personal big financial picture decision. You're a sucker for hard luck cases and let me tell you, from my own experience - no good deed goes unpunished.

    0Reply
  • Susan Maneck
    Investor 路 Jackson, MS 路 Member since 2014 路 1k+ posts 路 769 votes
    4y

    Self evictions are legal in Mississippi *only* if you can do so without causing a breech of peace. The only time I've ever done them is when the tenants had essentially abandoned the property. As others have suggested you might consider taking the utilities out of your name first as he is clearly unable to compensate you for them, but give him a few days notice first so he has the chance to put them in his own name should he choose to do so. I would treat the gun just like you would any other deposit. If he leaves owing you more money than the deposit then you don't return it, but you do send him a letter specifying what is still owed and that it exceeds the deposit. Keep in mind that if you don't take him to court you can't get a judgment that would enable you to garnish his wages and get back the money owed. It is a good time to sell real estate in Mississippi, the best I've seen it since right after Hurricane Katrina, but you will likely have to put some money into fixing it up. Good luck! 

    0Reply
  • Isaac S.
    Member since 2018 路 563 posts 路 562 votes
    4y

    You already self confessed to learning all the good stuff...best of luck and look forward to any updates on the drama

    0Reply
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