loopholes to add to lease to bypass eviction moratoriums

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loopholes to add to lease to bypass eviction moratoriums

Nathan Williams
Member since 2019 · 172 posts · 93 votes

I was curious if anyone else is trying to add additional clauses to their lease agreements to give themselves a way to evict a tenant other than for non-payment of rent during this ridiculous eviction moratorium.  I will be signing up a new tenant this week and am trying to do all I can to protect myself in the event this eviction mortarium is extended and my tenant decides to stop paying.  This is for a property in Indiana where the state doesnt put much restrictions on what can and cant be in leases.

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Bjorn AhlbladPro Member
Investor · Shelton, WA · Member since 2017 · 6k+ posts · 6k+ votes
6y

You can put in whatever you like. Does not mean it will hold water. Focus on screening instead! Don't allow any exceptions.

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  • Matt Devincenzo
    Investor · Clairemont, CA · Member since 2011 · 3k+ posts · 2k+ votes
    6y
    Originally posted by @Nathan Williams:

    I was curious if anyone else is trying to add additional clauses to their lease agreements to give themselves a way to evict a tenant other than for non-payment of rent...This is for a property in Indiana where the state doesnt put much restrictions on what can and cant be in leases.

    You may want to discuss this with an attorney first. While the State may not explicitly prohibit certain lease terms/clauses, there is a general legal principal in residential leases that you cannot enforce a clause that a tenant agrees to that reduces or eliminates their legal protections. The same is not necessarily true in commercial leases where both parties are assumed to be 'sophisticated'. But in residential it is assumed that the consumer should have the benefit of these protections. 

    4Reply
  • Bjorn AhlbladPro Member
    Investor · Shelton, WA · Member since 2017 · 6k+ posts · 6k+ votes
    6y

    You can put in whatever you like. Does not mean it will hold water. Focus on screening instead! Don't allow any exceptions.

    5Reply
  • Nathan GesnerBusiness Member
    Moderator
    Real Estate Broker · Cody, WY · Member since 2010 · 28k+ posts · 41k+ votes
    6y

    The current moratorium on evictions pertains to non-payment of rent. You can still legally evict for other lease violations.

    If you're concerned, stick with a month-to-month lease. This will allow you to give the renter 30 days notice and get them out for any reason and without involving the court.

    The DIY Landlord Book4.7243 Reviews
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    5Reply
  • Nathan Williams
    OP
    Member since 2019 · 172 posts · 93 votes
    6y
    Originally posted by @Nathan Gesner:

    The current moratorium on evictions pertains to non-payment of rent. You can still legally evict for other lease violations.

    If you're concerned, stick with a month-to-month lease. This will allow you to give the renter 30 days notice and get them out for any reason and without involving the court.

     Yes thats what Im exactly looking for... suggestions on what evict-able violations I should spell out in my lease.  I also lowered my lease to 6 months.

    0Reply
  • Nathan GesnerBusiness Member
    Moderator
    Real Estate Broker · Cody, WY · Member since 2010 · 28k+ posts · 41k+ votes
    6y
    Originally posted by @Nathan Williams:
    Originally posted by @Nathan Gesner:

    The current moratorium on evictions pertains to non-payment of rent. You can still legally evict for other lease violations.

    If you're concerned, stick with a month-to-month lease. This will allow you to give the renter 30 days notice and get them out for any reason and without involving the court.

    Yes that's what I'm exactly looking for... suggestions on what evict-able violations I should spell out in my lease.  I also lowered my lease to 6 months.

    I've evicted for criminal activity, noise violations, failure to maintain the property, abuse, neglect, parking violations, unauthorized animals or people, etc.

    If you don't have a proven lease agreement and are new to being a Landlord, I recommend you purchase the BiggerPockets Lease Agreement Package for your state. These are solid contracts written by BP investors and attorney-reviewed for each state. It's well worth the $100 or you can upgrade to a Pro membership and get them included along with a bunch of other features.

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    3Reply
  • Adrien C.
    Property Manager · Griffith, IN · Member since 2015 · 1k+ posts · 913 votes
    5y

    We are putting new tenants on M2M leases so if we have issues, we evict based on non-renewal and not due to non-payment. Judges are currently honoring it. 

    1Reply
  • Dena Puliatti
    Property Manager · Huntsville, AL · Member since 2017 · 302 posts · 246 votes
    5y


    In order to not be a evicted, a tenant must sign a sworn affidavit stating that they have been paying a little all along and making their best effort.  You can learn more about it at cdc.gov

    0Reply
  • Ian WalshBusiness Member
    Lender · Philadelphia, PA · Member since 2016 · 2k+ posts · 1k+ votes
    5y

    It would likely be pretty tough to enforce anything trying to bypass the eviction process in most areas.  

    0Reply
  • Julie S.
    Professional · Aurora, CO · Member since 2015 · 71 posts · 40 votes
    5y

    My tenants in Indiana lease expired in September 2020.  Went to court in November to evict because of non-renewal, judge said nope, tenant stays.

    2Reply
  • Nathan Williams
    OP
    Member since 2019 · 172 posts · 93 votes
    5y
    Originally posted by @Julie S.:

    My tenants in Indiana lease expired in September 2020.  Went to court in November to evict because of non-renewal, judge said nope, tenant stays.

    wow Im shocked considering how Indiana is supposed to a be very landlord friendly state

    0Reply
  • Greg WeikBusiness Member
    Property Manager · Denver, CO · Member since 2020 · 264 posts · 327 votes
    5y

    The takeaway for landlords and professional property managers is to focus even more on tenant screening.  Look at who still pays on time and who doesn't - use the data to help mold your processes tighter for the next time.  Be quicker to charge larger security deposits on risky applicants (or deny them.)

    If this has taught us anything, it's that there actually can be something more expensive than a vacancy...

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    2Reply
  • Nathan Williams
    OP
    Member since 2019 · 172 posts · 93 votes
    5y
    Originally posted by @Dena Puliatti:


    In order to not be a evicted, a tenant must sign a sworn affidavit stating that they have been paying a little all along and making their best effort.  You can learn more about it at cdc.gov

    understood but the moratorium does not provide any explicit avenues for landlords to challenge tenants who sign this and dont make "best efforts" to pay what they can.  For example my tenant signed this and balantly failed to make best efforts by paying ZERO ever since.  I talked to multiple lawyers and they said there is nothing they could do with the signed declaration.

    1Reply
  • Dena Puliatti
    Property Manager · Huntsville, AL · Member since 2017 · 302 posts · 246 votes
    5y

    @Nathan Williams. That's weird.  The tenant ledger should reflect the fact that the tenant has not paid.  Strange that it is not enough for the court.

    0Reply
  • Steve Morris
    Real Estate Broker · Portland, OR · Member since 2019 · 4k+ posts · 2k+ votes
    5y

    "I was curious if anyone else is trying to add additional clauses to their lease agreements to give themselves a way to evict a tenant other than for non-payment of rent during this ridiculous eviction moratorium."

    I think standard lease clauses are fine, since your only option is to catch them for something other than non-payment (like waving a gun in the parking lot, if you get that lucky).

    I think the theory of lease non-renewal doesn't work with most judges since it only means the tenancy is now month-to-month in their legal minds, which is still a lease except they're still not paying which is not allowed for eviction/FED as a cause now.

    If you find something shaky to nail them on and go to court, most judges side with tenants and will look at it as a cover to evict them for non-payment.  Again, not allowed now.  So make sure you have an iron-clad case (like a lot of backup or police reports if criminal activity).

    0Reply
  • Adrien C.
    Property Manager · Griffith, IN · Member since 2015 · 1k+ posts · 913 votes
    5y
    Originally posted by @Steve Morris:

    "I was curious if anyone else is trying to add additional clauses to their lease agreements to give themselves a way to evict a tenant other than for non-payment of rent during this ridiculous eviction moratorium."

    I think standard lease clauses are fine, since your only option is to catch them for something other than non-payment (like waving a gun in the parking lot, if you get that lucky).

    I think the theory of lease non-renewal doesn't work with most judges since it only means the tenancy is now month-to-month in their legal minds, which is still a lease except they're still not paying which is not allowed for eviction/FED as a cause now.

    If you find something shaky to nail them on and go to court, most judges side with tenants and will look at it as a cover to evict them for non-payment.  Again, not allowed now.  So make sure you have an iron-clad case (like a lot of backup or police reports if criminal activity).

    In NW Indiana, our courts are starting to shift away from the conservativeness most of the state has due to the liberals moving in from Chicagoland (move from your dump but vote the same- makes sense). Two of our 4 judges are allowing as to evict for leases that have ended. 2 don’t care what the eviction is for- they won’t let it happen. Needed an emergency eviction for excessive damage and unsafe living conditions as a result and judge was a no.  

    0Reply
  • Steve Morris
    Real Estate Broker · Portland, OR · Member since 2019 · 4k+ posts · 2k+ votes
    5y

    "In NW Indiana, our courts are starting to shift away from the conservativeness most of the state has due to the liberals moving in from Chicagoland"

    Probably having direct flights from Portland to NW Indiana doesn't help either :)

    I don't get it either, people leave Cali to get away from screw-ups running the state and then they vote for the same screw-ups in the new place - Slow learners or product of the public school system is my guess.

    1Reply
  • Julie S.
    Professional · Aurora, CO · Member since 2015 · 71 posts · 40 votes
    5y

    @Dena Puliatti It can't be about rent or any money tenants owe.  You can evict on other defaults.

    0Reply
  • Julie S.
    Professional · Aurora, CO · Member since 2015 · 71 posts · 40 votes
    5y

    @Steve Morris Yes, I am adding clauses to my leases.

    1.  Not communicating with Landlord is a lease violation.

    2.  If tenant falls behind on rent payments and evictions are not allowed, tenant must set up payment plan with landlord or advise landlord of any rental assistance they are seeking and the outcome.  Tenant must keep Landlord updated as to any changes to income.  Failure to update landlord is a lease violation.

    3.  After lease term, rent goes up $100 until new lease is signed or move out.

    4. If rent is not current or late, tenants pays all utilities including water that may have been paid by landlord until end of lease or move out.

    Stricter pet policies and occupant policies.

    0Reply
  • Steve Morris
    Real Estate Broker · Portland, OR · Member since 2019 · 4k+ posts · 2k+ votes
    5y

    Well, love to hear how these work out if you to go to get a FED.   Be curious on how you enforce non-communication and the rest are just not paying rent which you can't evict for now. 

    Again, you can have the best intentions, but you're dependent on getting a judgment from someone that is 95% on the tenant's side.

    0Reply
  • Deisy P.
    Rental Property Investor · South Padre Island, TX · Member since 2018 · 160 posts · 157 votes
    5y
    Originally posted by @Dena Puliatti:


    In order to not be a evicted, a tenant must sign a sworn affidavit stating that they have been paying a little all along and making their best effort.  You can learn more about it at cdc.gov

    My tenant seems to think they are exempt from paying me even $1. Aside from breaking other lease violations. I already hired a lawyer to start the eviction process.

    1Reply
  • Julie S.
    Professional · Aurora, CO · Member since 2015 · 71 posts · 40 votes
    5y

    @Steve Morris When I brought up these tenant issues, my attorney said "is it in the lease"....now it is.  

    I have a tenant not paying rent (lease ended in Sept 2020) and I have to continue to pay their utilities. Not with this new lease and this issue wouldn't be included in the rent moratorium.

    0Reply
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