Can I file for eviction prior to tenant failing to vacate?

21 Replies

I just bought a duplex and gave the tenants a notice of 15 days notice to vacate.

They don't have a lease and have paid until the end of August.

They have already stated they are not leaving at the end of the month.

My question is, can I lodge the eviction application now, to get a court date booked in or do I have to wait until the end of the 15 day period and then apply?

I imagine the courts are backed up and I will be waiting some time for my hearing date.

In ohio I can't file until after the tenants 3 day pay/vacate is up.  LIke you are saying why filing changes anything except that it costs the business owner/landlord  more money potentially idk so check your states landlord/tenant laws

Originally posted by @Nat Chan :

I just bought a duplex and gave the tenants a notice of 15 days notice to vacate.

They don't have a lease and have paid until the end of August.

They have already stated they are not leaving at the end of the month.

My question is, can I lodge the eviction application now, to get a court date booked in or do I have to wait until the end of the 15 day period and then apply?

I imagine the courts are backed up and I will be waiting some time for my hearing date.

 Let's explore this a little bit deeper. Why do you want them to vacate?

You may have to wait until early next month to file eviction (for non-payment of rent).  But there are different ways to encourage them to leave prior.  For example, you can file for eviction with other causes (if applicable), or simply offer them a little bit of money to leave (Cash for keys).  As an example, I just recently acquired a 2 family and there is a tenant who initially didn't want to leave.  Normal process would have taken around 30 days to 60days but we manage to get the unit vacant in 1 week with Cash for Keys. Both sides are happy (the tenant got some money, I had the apartment back earlier and hence collect rents earlier).

@Nat Chan

I don't believe that you can file early. Until they've actually held over (or failed to pay rent, or otherwise breached the lease), you don't have a valid cause of action against the tenants for forcible entry and detainer. I can envision some scenarios where this would slip through the cracks and you'd be able to get away with it, but I wouldn't file the case for you like this and I imagine very few other attorneys would be willing to do so either. Even if you managed to get on the docket and get a hearing, you'd be giving the tenant a valid defense that would presumably lead to the dismissal of your case and sending you back to square one. This isn't the kind of corner you want to try and cut.

You probably can. I don't know for sure. But, its kind of a ****** thing to do. I remember one time back when I was renting and my landlord lived in Korea. I had signed a one year lease and had been there for 2 and 1/2 years. He came back from Korea and gave me a 30 day notice (which was legal) but it was almost impossible to find another place and be out within 30 days. 60 days is more reasonable as long as they pay in my opinion.

Originally posted by @Che Chiu Wong :

 Let's explore this a little bit deeper. Why do you want them to vacate?

I want them out ASAP as the unit has been absolutely trashed by them. There are about a dozen big holes in the drywall which the tenant said is from punch ups, most doors have been ripped off the hinges or have holes in them to name a few things. There appears to be at least 15 people living in a 3 bedroom unit. The place stinks of marijuana and there are 3 little girls and a baby which makes me feel very sad. The shared backyard is filled with their junk which the tenants in the other unit complained about.

I did a civil and criminal background search on the tenant and he has been evicted twice and has an extensive criminal records including multiple drug charges, break and enters, battery and assault with a weapon.

Here is a picture of their backyard treasures:

Originally posted by @Damon Duperre :

You probably can. I don't know for sure. But, its kind of a ****** thing to do. I remember one time back when I was renting and my landlord lived in Korea. I had signed a one year lease and had been there for 2 and 1/2 years. He came back from Korea and gave me a 30 day notice (which was legal) but it was almost impossible to find another place and be out within 30 days. 60 days is more reasonable as long as they pay in my opinion.

 Damon, I assume you were paying rent and looking after the place? These tenants are not and the reason I want to get them out ASAP is to reduce the amount of further damage.

Current owner says they are difficult in paying rent and they haven't paid August rent in full and I guarantee would not pay September rent if I gave them an extension of time. 

They owe the previous owner $300 from August rent. The tenant said that the owner called to try to collect the $300 owing.

Tenant stated they were vexed that the owner had the hide to call and try to get the money owed. He said that there is no way they are paying rent now they've been told to leave and that they will not be leaving.

I will definitely be offering them cash for keys however I think they will try to demand a very large sum, like something in the thousands. 

Originally posted by @Nat Chan :

I just bought a duplex and gave the tenants a notice of 15 days notice to vacate.

They don't have a lease and have paid until the end of August.

They have already stated they are not leaving at the end of the month.

My question is, can I lodge the eviction application now, to get a court date booked in or do I have to wait until the end of the 15 day period and then apply?

I imagine the courts are backed up and I will be waiting some time for my hearing date.

Nat, I know this is very dependent on local and state laws but often when there is no lease in place, then the terms basically default to month to month.  So, you may be looking at a m2m situation that starts with the date you took possession (or even the 1st day of the next month) of the property and 15 day notice may not be enough.  I doubt you can evict them based on the argument that they didn't pay the previous owner all the rent owed.  No lawyer here (obviously!), so just an opinion and food for thought.

Originally posted by @Andrew S. :
Originally posted by @Nat Chan:

I just bought a duplex and gave the tenants a notice of 15 days notice to vacate.

They don't have a lease and have paid until the end of August.

They have already stated they are not leaving at the end of the month.

My question is, can I lodge the eviction application now, to get a court date booked in or do I have to wait until the end of the 15 day period and then apply?

I imagine the courts are backed up and I will be waiting some time for my hearing date.

Nat, I know this is very dependent on local and state laws but often when there is no lease in place, then the terms basically default to month to month.  So, you may be looking at a m2m situation that starts with the date you took possession (or even the 1st day of the next month) of the property and 15 day notice may not be enough.  I doubt you can evict them based on the argument that they didn't pay the previous owner all the rent owed.  No lawyer here (obviously!), so just an opinion and food for thought.

 Florida law required 15 days notice when on a month to month lease.

Those are some wicked pictures!.. Never amazed anymore at the ways some tenants treat their own stuff, aquire junk, wont rid themselves of junk etc....... But then again isnt that whyat landlords are for(in their heads)

Originally posted by @Nat Chan :
Originally posted by @Andrew S.:

 Florida law required 15 days notice when on a month to month lease.

Is that 15 days for the tenant to vacate, or is it 15 days notice that they will have to be out be the end of the next month?  I.e. you give notice on the 15th of August that you will not be renewing the lease, meaning they have to be out end of September.

A "month to month" lease term implies to me that the tenant will have a minimum of 30days to vacate (plus whatever the notice period. Please someone set me straight, if I have that backwards.

Originally posted by @Andrew S. :
Originally posted by @Nat Chan:
Originally posted by @Andrew S.:

 Florida law required 15 days notice when on a month to month lease.

Is that 15 days for the tenant to vacate, or is it 15 days notice that they will have to be out be the end of the next month?  I.e. you give notice on the 15th of August that you will not be renewing the lease, meaning they have to be out end of September.

A "month to month" lease term implies to me that the tenant will have a minimum of 30days to vacate (plus whatever the notice period. Please someone set me straight, if I have that backwards.

 You have to give them 15 days notice prior to their next rent period. So if they pay rent on the 1st of the month, you have to give the notice to them by the 15th of the previous month. I got the notice to them on the 15th of August at 7pm, so just in time. I didn't post the question on here until days later as the thought only just occurred to me as to whether I could try and book in an earlier court date.

Originally posted by @Nat Chan :
Originally posted by @Andrew S.:
Originally posted by @Nat Chan:
Originally posted by @Andrew S.:


 You have to give them 15 days notice prior to their next rent period. So if they pay rent on the 1st of the month, you have to give the notice to them by the 15th of the previous month. I got the notice to them on the 15th of August at 7pm, so just in time. I didn't post the question on here until days later as the thought only just occurred to me as to whether I could try and book in an earlier court date.

Great thanks.  So, then, back to the original question: (can you start eviction now?), it doesn't seem that you have any GROUNDS to file for eviction until they dare past due on the September rent, unless you want to kick them out based on some other lease violation, such as "failure to keep the place in reasonable condition" or "too many occupants" or something which, it sounds )and looks) like you could probably do right away.

@Nat Chan

Thanks for posting these pictures!  15 people in a 3 BR?  What a mess, been there before.  It is got to be way past Fire Marshall rules in your area.

Maybe @Wayne Brooks or some Florida landlord has some info on this. Having no lease makes it difficult in any state.

Since you don't have a lease I would look through Florida statute for obligations that imposed on Tenants.  I'll bet they have an obligation to keep the premises clean and in good repair and are prohibited to destroy the place.  That would give you the right to start the action before they fail to pay rent.  You may have to give them an opportunity to cure.  Might be time to hire a FL attorney.

@Nat Chan  why didn't you have the former owner get them out before purchase?

Originally posted by @Scott Weaner :

@Nat Chan why didn't you have the former owner get them out before purchase?

 This property was listed at about 60% of the market value. Worth over $300,000, listed for $180,000. I put in an offer for $181,000 within an hour of it being listed- all cash, 1 day inspection period. I did not expect to actually get the property at this price. I expected an investor bidding war with a final sale price in the high 200s. I was actually shocked when they accepted my offer within an hour of me sending it.

At no point in time was I going to risk losing the deal by adding clauses about the owner evicting tenants. They simply would have gone with the next person in line to buy it.

Nat Chan Incredible situation, hang in there! Like already stated, it might be time for a real estate attorney to take over. You're not going to want to miss crossing a T or dotting an I and delay the process even longer. Something else that came to mind is maybe give the Fire Marshal a call. He/She may be able to issue a violation notice that would help your case. I don't know FL law but in MI we cannot start the eviction process until after the specified days have passed, I.e. 7-day pay or quit.

Nat,

I was. It's funny because when I was renting I thought I was a bad tenant but now that I am a landlord I realize that I was a great tenant.

Tenants have to actually be late on rent before you can file to evict due to non-payment of rent! 

When you fill out the Affidavit and Statement form to file for eviction, it asks for the amount of rent NOW due. You cannot put a future amount or date on the form. At least that's how it is in the state of MO.

The nice thing is that since you got such a great deal, cash for keys won't hurt too bad! Get rid of them before they do some real damage.  :-)

Join the Largest Real Estate Investing Community

Basic membership is free, forever.