When should I file eviction?

15 Replies

I got a bad renter and I want him out.

My story is, at the beginning of this month, I rent my property to a guy. We signed the lease(1 year). He gave me the rent for this month but did not have enough for security deposit. I believed him when he promised to deposit security deposit to my bank account the next day and I gave him the key before I saw deposit. However two weeks later still no security deposit. Even worse than that, he now completely ignores my calls and wants to live there for free.

I sent certified mail out to state:
1. not paying security deposit is a serious default and informed him the lease has been cancelled.
2. demand my property back and ask this guy to move out by the end of this month, otherwise eviction.

Now, it is only about a week to the end of this month. I am thinking what should I do next? If this guy does not leave:
1. Is it fine to demand the property based on "consider not paying security deposit as a default." In lease, it has something like "If defaults which includes but not limited to not paying rent, landlord can terminate the lease and give tenant at least 1 day to move out." (BTW, this is in Georgia)

2. What is the best reason and when is the best time to file eviction? I know most of them are "not paying rent". But I want to end the lase and want him out. I am pretty sure this guy is not going to pay rent for next month. Or should I better to wait several more days until Jan 1 past then file for not paying rent? (That will assume the lease is still valid even I already told him I already cancelled it.)

Thanks
Jenny

Hopefully you've learned the "one full month rent plus full security deposit to move in" lesson.

You probably need to find an eviction lawyer. Perhaps someone can recommend one in your area.

Since you let him in you may have a hard time evicting for lack of a security deposit. Don't know. Good topic for a discussion with a lawyer.

You cannot unilaterally cancel the lease. Sorry, but it is still in effect. A 12 month lease is MUCH more binding on you than on the tenant. I stopped doing them and only do month to month. Mine (reviewed by a CO attorney) allows me to give ten days notice (before the rent is due) that the lease is terminated.

If he doesn't pay the rent on Jan 1, you will have excellent cause to start an eviction. Post the pay or quit notice on the first allowable day and then start the legal paperwork as soon as you can. Again, you probably want a lawyer to help you with the process as any errors can void the entire process.

Thanks for your input.

In the future, Can I put extra column in lease to clearly state not paying security deposit will be considered as default and can cause lease termination, even eviction?

Thanks.

You shouldn't need that line, NEVER let them move in without the sec dep and rent paid in full!!!

In the future, Can I put extra column in lease to clearly state not paying security deposit will be considered as default and can cause lease termination, even eviction?

That's absolutely unnecessary. DO NOT HAND OVER THE KEYS until you have one full months rent and the full security deposit. Its just that simple.

As everyone has said, never let them move in without the security deposit and anything else you want them to do/provide - have the utilities put in their name, provide proof of renter's insurance, etc. Once they're in, it's expensive and usually unpleasant to get them out.

If a tenant tells you before they move in that they don't have the security deposit, they will never have it. No money - no keys!

Originally posted by Jon Holdman:
In the future, Can I put extra column in lease to clearly state not paying security deposit will be considered as default and can cause lease termination, even eviction?

That's absolutely unnecessary. DO NOT HAND OVER THE KEYS until you have one full months rent and the full security deposit. Its just that simple.

I agree. Both in hand, IN CASH, before keys.

I would add it to the lease just cause there isn't a down side. If something comes up where a money order was forged or something, I would prefer to have the lease protect me. Still, whether it's in the lease or not, no one moves in without first month's rent and security deposit.

Thanks everyone.
So looks like my best bet is to file eviction if he does not pay rent.

Jenny,

Is this a house in Alpharetta or an apartment?? I have 20 units in Alpharetta.The court jurisdiction is Fulton county.

Sounds like you have a PROFESSIONAL TENANT.Don't hold out hope the tenant will pay up.

Jenny with any tenant I ALWAYS tell them upfront no sex offenders,felonies,judgements from evictions,pit bulls,etc. I tell them we perform monthly checks and from day one if they are violating the lease they will be evicted.

I check criminal,credit,and verify the past 2 landlords along with employment and income.They pay 25 dollars which covers the tenant check for credit and criminal and I make the calls on the rest.Out of every 6 applications I take I might take in 1 tenant.

The quality tenants like this and tell their friends about us.The number one fear of a good tenant is having a nice place to live and a landlord does bad screening and they are now living next to a nightmare tenant.

Not everyone will have a security deposit.It depends on what type of renter base you have.The tenant for a 1,300 a month 2 bed in Alpharetta will be different from a 30 year old building 2 bed going for 825.

What you have to watch out for is length on the job.If they have credit they want to protect and a good job you can garnish wages if they default.If they have 2 jobs and one is full time and the other part time they might get into trouble paying the rent if the hours are cut at the second job.

If you are dealing with section 8 it is important that the rent voucher covers the full rent and not partial as it's really hard for the tenant to pay the difference every month.

Professional tenants are great talkers.They stay at one place and pay first month then get a few months free.Then leave and put first months down again with another landlord.They pay 3 to 4 months out of a year this way.

What needs to happen is there are 2 offices.One in Roswell and one in downtown Atlanta.You can file in the Roswell office for eviction.Before filing you need to give the 3 day notice tacked on the door and mailed demanding the rent in full or face eviction.

The cost to file evictio nwill be around 80 something dollars.70 something if just one tenant on the lease but we always file a secondary (and all others) for ten bucks more.This covers ANYONE in the property at the time of eviction.

So you will go file in Roswell office and then the tenant will get in the mail and have 7 days to respond.

If the tenant does not respond you will get a default eviction from the judge.You will not get a judgement in this case and must file in small claims court against the tenant to recover damages.

After you have the eviction order you pay 20 bucks and file a writ.The order will go down to the sheriffs office and they will schedule a time for the tenant to be out.The process can take 2 to 5 weeks depending on how many writs Fulton county has to serve for that month.

It pays to use the eviction companies and pay the 120 bucks for the service.They have 8 to 9 people and get in and out fast.The sheriffs office knows this and gives those cases earlier scheduling priority versus and a landlord doing it with a few helpers taking an hour to evict a tenant.

If the tenant does file an answer in court you will get a court date.Make sure you are there ON TIME.If the tenant shows up late the judge is already ready to throw the book at them.If YOU the landlord show up late you are in for a world of hurt.The judge sees it as if you don't show up to get the eviction order for your own property WHY should the judge care??

Once you get a judgement in favor of the landlord and an eviction order make sure you file the writ in the Atlanta office down town.The Roswell office sometimes loses batch orders they are transferring down town for execution and your case can get delayed that way from serving the writ. I know this from experience.You will have to go to Atlanta for the hearing on eviction if an answer is filed.

When there before the court hearing they always assign a mediator unless the landlord,tenant,or both object to not negotiating a workout before seeing the judge.

I always tell the tenant before going down there if they want to pay x or do a workout go ahead and give me the money now and we don't have to drive and show up for court.

If they insist on a mediator we go downtown but I tell them to have cash or cashiers check on hand and the amount better be the full amount or close to it owed or no workout will be looked at with the mediator.

You need to give the 3 day notice TODAY and immediately file eviction.You need that in process in case the tenant is lying about their situation.If you wait weeks and weeks and the tenants lies don't come true with cash just more excuses you have lost another months rent.

If you get a judgement you can file a FIFA on their credit and go after wage garnishment but it is a long and drawn out process.Sometimes the tenant will say we will pay 600 if 1,000 is owed and move out by xxx date.If they do that sometimes it is an option.

You lose 400 but don't spend 2 months getting them out and re-rent to another tenant so gain in the long term.Other factors in a workout is how long the tenant has been living there.If they have wore the unit down pretty good it's better to work with them many times instead of pumping thousands and thousands of dollars in to get ready to re-rent again and lose a months of income to boot and court costs.

Hope it helps.

No legal advice.

Joel, thanks a lot of your very detailed advice.
My property is in Gwinneet, so I think the court is in Lawrenceville.

Your reply brings up several very good topic.
1. Many people are suggesting me to file TODAY. Does that mean I can really file Today based on the fact "not paying security deposit considered as default" or I need to wait until he actually not paying rent?
Say, Jan 1st is the due date. So if he does not pay on 1/1, I gave them 3 days notice on 1/2, then the earliest time I can file is 1/6 ?

2. You mentioned the eviction service company, do you know any good ones around here? or your company offer such service?

3. At the end of your post, do you suggest it is better to work out with tenant? I do worry about spending another thousand to get the property ready again.

Thanks.
Jenny

You have just paid for the best education you can ever get....experience...
I only do lease options, and I get people asking all the time "Can we spread out the down?"
This is equivalent to not getting the security deposit.
Rule #1 in real estate: If they don't have the money, they don't get the keys.
Rule #2: if you trust them, they will $&*# you.

Now, having said all of that, what do you do now?
Evictions and the process of evictions are based upon the state's Property Code.
You must be knowledgeable of the Code for your state.
Joel, it seems, is in your state. So, look to him for guidance for this situation.
DO NOT try to circumvent the law regarding evictions.

Jenny I assumed because you are in Alpharetta that your property was there............ :)

The code and eviction process is the same just different offices and locations and judges to deal with.

1.You can file eviction for rent owed OR a violation of any stipulation in the lease agreement as long as it is lawful and legal.For example they paid rent on time but I found out they had a pit bull and it is expressly forbidden in the lease I could file right away.

When in your lease does it say the rent is late?? The 2nd,4th,5th??

If it's late on the 5th then give 3 day notice in writing on the 6th.Tack and take picture of the door with the letter attached if they don't answer with time and date stamp on the picture.Also mail the notice as well. After the 3 days the go to file eviction.The courts are closed on the weekends so you need to time your 3 day notice so you can file eviction by Friday at the latest and not lose 2 days on the weekend.

If you never received a security deposit as stated in the lease then they are in breach of the contract and you can file eviction after 3 day notice.If you want to include the rent then wait until it is past due to file along with the security deposit issue.

2.Jenny I don't do evictions.Usually the people are long gone by then.What will happen is when you file for eviction the counties have the list of the landlords filing.There are eviction companies that work with that county and do a majority of the evictions. They will call you and say that they saw you have a pending eviction etc. and they charge xxxx for the fee.When the Marshalls see you use that company they give you priority.They usually charge about 140 bucks.

You can do the eviction yourself when they Marshall serves the writ but they want to see 4 people at least helping you.So you almost pay what a company would cost to do it.

If the tenant hands you over the keys before the writ is served then you can change the locks as they have left.If however there appears to be over 500 in personal property left in the property you should wait on the writ to be served.

If the tenant appears to have left and there is no utilities on or items in the apartment at all then you can re-key.

Most of the time the tenant will leave on their own after the eviction order is given.

3.It depends on the tenant and the situation.You get a feel for it after awhile.Tenants know when they are dealing with a seasoned landlord or a newbie.

It sounds like you are a rookie and made a bunch of mistakes in screening the tenant.

no legal advice - anymore questions just ask

Thanks a lot, Joel. Your reply helps me out a lot.

Just got another question for Joel.

In the event of filing "Writ of possession" or going trial in court, can I authorize my property manager to represent me?

The reason is I have a business trip for probably a month out of country coming pretty soon. I want to keep this going while I am not here. Otherwise I will need to start all over again after I get back.

Thanks again.

You have the 3 day notice,then filing with the court for eviction.If the tenant files a response you will get a letter in the mail with the tenants response and a court date and time.

The property manager can go in your place but you need to file the paperwork correctly when doing the eviction.Your manager should be able to get it done going to the eviction office.

The manager goes to court and if the judge awards a judgement you will have to file to collect on that later.Once you have eviction order from the judge go file the writ immediately that day.

Then hopefully the tenant will move on their own and not wait for the cops to forcably remove them with the writ order.

With all this said if you screw up one thing you could have to redo the process.

So I would be hesitant to not do this first one myself.If something goes wrong you will lose even more rent.

Make sure your property manager is experienced and not an agent just doing rentals in between closing sales.That is a recipe for disaster.Ask them how many court appearances and evictions they have done before.

No legal advice

No legal advice.

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