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Residential Tenant Evictions - Easy?

            So you want to be a landlord - a good way to make passive income, right?  No so fast - it's great when tenants pay their rent, take care of the property, and fulfill their obligations.  When they don't, it can be your worst nightmare.

Pre-Leasing Diligence

            Before purchasing property, do your due diligence.  Obtain and carefully review payment histories for existing tenants.  If the property has tenants with poor payment histories, you may want to pass on that property, or require the seller to personally guarantee the tenant's obligations.

            If you already own property, and are looking for new tenants, always check the credit history and references of potential tenants.  Require that all adult applicants individually fill out a detailed application (including social security numbers), and then require that each adult sign the lease. 

Tenant Default

            In spite of your best due diligence and efforts, you may end up with tenants that do not (or cannot) pay the rent.  Utah law provides that a landlord does not have the remedy of self-help (in other words, you cannot evict the tenant on your own without completing the proper steps).  When a tenant defaults, the landlord can initially work on the eviction process independently, but there are many detours and nuances that may arise along the way.  There is no substitute for good legal advice and assistance, particularly when filing court proceedings; and while an individual can choose to represent himself in a court proceeding pro se, a company must be represented by an attorney.

Highlights of the Eviction Process

            When the rent is past-due, and you are ready to evict, the tenant must be served with a "3-Day Notice to Pay Rent or Quit" (usually three days - in certain instances, the notice period is longer).  As the name indicates, the document gives the tenant three days to either bring rent obligations current, or leave the premises.  If the tenant fails to do one or the other, the landlord is entitled to treble damages for the period of time from the time the notice is served until the time the landlord regains possession of the property.  The next step is to file a Complaint for eviction.  Upon filing, the court can require the tenant to respond as soon as three days after the tenant is served. 

            If the tenant answers the Complaint, the matter moves through normal litigation proceedings, but on a somewhat expedited basis.  The landlord has a right to file a possession bond any time after filing the Complaint, which may help the landlord regain possession of the property while the litigation proceeds. 

            If the tenant does not answer the Complaint, the landlord can ask the court for judgment against the tenant and for an order restoring possession of the property to the landlord.  The court will require a number of documents be prepared, served, and/or filed, including a form that advises the tenant of the right to a hearing, and an affidavit or other evidence that the tenant is not an active member of the military.  The Servicemembers' Civil Relief Act of 2003 has specific rules about whether active military personnel (or their family) can be evicted.  The information needed is available from the Department of Defense at www.dmdc.osd.mil/scra/owa/home.  To make use of this service, you must have the tenant's social security number, so again, it is imperative that the information is obtained when the tenant first applies to rent your property.

            The Court's order will set out when the tenant must vacate.  If the tenant does not do so, the sheriff can remove the tenant.  If the tenant does not remove its personal property, the sheriff inventories and removes the property to a suitable storage place (the sheriff can, and often does, delegate that responsibility to the landlord).  If within 30 days the tenant does not request return of the property, the landlord can dispose of it in a commercially reasonable manner.  If the tenant requests the property within the 30 days, the tenant must pay storage costs to retrieve the property.

            While the eviction process can be time-consuming and frustrating, the law is designed to balance the rights of property owners and tenants, and to protect the rights of all.  Understanding the procedures and retaining competent counsel are important steps in making the process a little less painful.

Ruth Q. Hawe, an attorney with the law firm of Van Cott, Bagley, Cornwall & McCarthy, practices in the areas of real estate and corporate law.  She can be reached at 801.237.0289 or rhawe@vancott.com.