Lease expired 8/31, tenant still there, can I evict without notice?

Question

My lease with a tenant in a town home I own expired 8/31/13, he is still there. He says he thinks he has a place for 9/8/13, but I doubt it, I would rather start the evict process sooner rather than later. Do I need to post a notice (3 day in CO), or can I just file Summons and Complaint with the Court on Tuesday? It seems redundant to have to post a three day notice to perform, when the performance I require is that I want him to leave.

Mike Franco · Answer

Each state's law is different. You could get a quick answer by calling a RE/landlord attorney or ask your question on avvo.com They should freely volunteer basic information like this, or you can coax it out of them by pretending to shop for their services. They're always happy to serve pay or quit notices for a fee and such, so they'll tell you the timeline, and whether or not a 30 day notice is even necessary. Of course, you don't want to delay your eviction by serving an unnecessary 30 day notice, as some people here are suggesting.

I know for sure that if this were in California, you can file unlawful detainer right away when someone overstays the lease, especially in my lease, where the clause is written as such-

"Upon termination date, Tenant shall be required to vacate the Premises unless one of the following circumstances occur: (i) OWNER and Tenant formally extend this Agreement in writing or create and execute a new, written, and signed agreement; (ii) OWNER willingly accepts new Rent from Tenant, which does not constitute past due Rent. In the event that OWNER accepts from Tenant new rent, a month-to-month tenancy shall be created subject to the terms and conditions of this agreement"

I have used the thread of UD to scare tenants into moving out by explaining that such a mark on their background and credit history will make it difficult for them to ever find another rental.

So ask a CO lawyer to see if things are similar. Do that right away.

Rob K. · Answer

I'm no expert, but the way that I undersdand it is like this:

If you are terminating their tenancy (you want them out), you need to send them a 30 day notice. The 3 day notice would be for non-payment of rent. Therefore, if you serve them a 3 day notice now, and they don't pay rent in three days, you can take them to court and have them evicted. The judge will give them time to pay or move. If they pay, they can stay. If you don't want this tenant to stay, you need to serve a 30 day notice. wait the 30 days, then file eviction papers with the court.

I think in the future, if you don't want to renew someone's lease, you should serve them with a 30 day notice to vacate prior to the lease expiration. If you had done that at the beginning of August, you could file papers today to have them remooved.

Since this tenant doesn't have a new place to go until next week, he wants to make his problem your problem.

John Rooster · Answer

I did provide the tenant with a courtesy reminder at the beginning of August that they needed to move out by the end of August because the lease was ending. I don't want them to pay the Sept rent, I want them to move. As it is, I have already posted a three day notice to vacate, and told them I would not file an eviction till next Monday. But I would like to know, for future reference, whether a 3 day notice was required. So  far the most on point response I have is from Mike Franco, but it is not clear to me whether he is saying in his last paragraph that a 3 day notice is or is not required

George Paiva · Answer

I was thinking the same, did they pay Septembers rent?  If not then submit the notice to quit.  Here in CT we have to wait 10 days before submitting the "notice to quit"  either way I would go ahead while waiting on them to move out or pay the months rent.

Jack Bobeck · Answer

I second Jon's statement, post that they are late with the rent and see if they can just leave....Or you may get it pro-rated for the time they are there, too.

Mike Franco · Answer

It depends on what the lease says.

Otherwise, neither side has the obligation to continue after the lease expires, no 30 day notice needed. Giving notice before lease expiration is just a courtesy.

However, if LL accepts payment, then it could become month to month, in which case a 30 or 60 day notice may be required. Here in CA, after 1 year tenancy, LL is required to give 60 days notice to tenant, which sucks.

In the case of the OP, he has a holdover tenant who can typically be evicted immediately

Jon Holdman · Answer

I would have expected to have received rent for a full month today if the tenant was still there.  I'd let the tenant know the September rent is late.  Post a pay or quit on Thursday and file for eviction next Monday if they're not out or you've not received September rent.

Alberto Furet · Answer

I believe that unless either the landlord or tenant give 30 day notice not to renew the lease, it turns into a month to month situation.

John Rooster · Answer

Thank You. I have naively done 40 evictions on my own with thinking of using an attorney.

Stephen Masek · Answer

You have to dot every I and cross every t to not have greater problems.  A local real estate attorney specializing in landlord-tenant matter is what you need.   Look to you local apartment association and their magazine for ideas on a few to call.   Good thing you are not in the city of Los Angeles, where tax money is funding a group which represents tenants and is demanding jury trials on evictions, now, when courthouse space has been drastically reduced.