Avoid Four Common Mistakes When Evicting Residents

All site owners at one time or another must take the unpleasant step of evicting a resident. You may have to evict a resident for one of a number of lease violations, such as nonpayment of rent, excessive noise, or criminal activity. Whatever your grounds for eviction, you want to do everything you can to make the eviction process go smoothly. But it’s easy to make mistakes before your case goes to court. And a mistake could delay your eviction case or, worse, force you to give up the right to evict the resident. Here are four common mistakes owners make and how you can avoid them.

Mistake #1: Failing to Give Proper Notice

Before you can go to court to evict a problem resident, you must give the resident a termination notice telling him that he’s breaching the lease and demanding that he move out of the unit by a specific date. But many owners don’t properly prepare these required notices. Sloppy and incomplete notices are the downfall of many evictions, says Colorado attorney Michael Hepner. If you don’t include everything that’s required in the notice, your eviction case won’t stand up in court.

How to avoid. Make sure you know all of the rules about termination notices. HUD Handbook 4350.3, par. 8-13(B)(2) requires the following items to be included in these notices:

> Termination date. The notice must state the termination date, which is the date by which the resident must move out of the unit.

> Intent to enforce eviction in court. The notice must advise the resident that if he stays in the unit past the termination date, you’ll go to court to evict him.

> 10-day window to discuss. The notice must give the resident 10 days to come to you to discuss or challenge the eviction. And you must agree to meet with the tenant in person. This gives the resident an opportunity to clear up any misunderstandings or to agree to stop objectionable behavior. For example, a resident who has a pet in violation of house rules may agree to give up the pet. Or a resident who hasn’t given income information necessary to complete recertification may come to you with all of the required information. You must give the resident 10 days to see you and discuss these explanations before the eviction process moves forward.

> Reasons. The notice must explain your reasons for evicting the resident. You must include both: (1) the lease provisions that you’re claiming the resident has violated; and (2) a thorough explanation of what the resident did to violate them. HUD requires you to give detailed information so the resident can know the nature and extent of the evidence against him and prepare an adequate defense in court.

Be as specific as possible when stating your reasons, advises Hepner. If a particular incident supporting a lease violation isn’t listed or explained in your notice, you generally won’t be able to bring it up in court. If this happens, you’ll be left without the evidence you need to support your case.

For example, in a case involving the eviction of an excessively noisy resident, you can’t make vague and general statements about the resident’s conduct. Your notice shouldn’t say simply, “You have engaged in raucous behavior on several occasions, which violated the peaceful enjoyment and safety of other residents.” This explanation is too vague and doesn’t give the resident sufficient notice of what he did to violate the lease. Instead, the notice should list specific instances of the alleged misconduct, including dates, times, and locations, if possible, so the resident knows exactly what he’s accused of having done.

> Service. HUD rules also specify how you must “serve” (that is, deliver) termination notices to residents. Depending on the type of assisted site and lease violation, you may have to both mail and hand-deliver the notice to the unit. For more information on the service requirements, see Handbook 4350.3, par. 8-13(B)(3).

Also, most state and local laws impose additional requirements on termination notices. Hepner advises his clients to send two separate notices to residents, one satisfying HUD requirements and one satisfying Colorado state requirements. Before you send any termination notices, talk to your attorney about what your notices must contain so that you comply with HUD rules and your state’s laws.

Mistake #2: Accepting Rent While Eviction Process Is Pending

After you’ve sent the termination notice, a resident may offer you a rent check. You may be tempted to take the money and continue with the eviction process. But if you do so without specifically reserving your rights to go ahead with the eviction, the resident may ask a court to throw out the eviction, and the court may agree, saying that you’ve waived—that is, given up—your right to evict by accepting the rent, says Massachusetts attorney Daniel Bancroft. That’s because by your accepting the rent payment, the resident may think you’ve forgiven the lease violation and are letting him stay at your site, he explains.

How to avoid. Keep track of the residents you’re evicting. Tell your site staff which residents you’ve sent eviction notices to, and instruct the staff not to accept rent payments from those residents.

Even though you may not be able to get rent, many states let you get what’s known as “use and occupancy” payments. Use and occupancy is what the resident pays while your eviction case is pending. You shouldn’t call it “rent,” because technically you’ve terminated the resident’s lease and aren’t entitled to collect rent. But while the resident is still living in the unit, you may be allowed to ask the resident for use and occupancy as compensation while your eviction case is pending. Talk to your site’s attorney about whether your state’s laws provide for use and occupancy payments.

Although you shouldn’t accept a resident’s rent after you’ve sent a termination notice, you may be able to accept HUD housing assistance payments (HAP) without waiving your eviction rights, says Hepner, who has successfully made this argument in court. A HAP is the subsidy that HUD provides to pay the portion of the contract rent that the tenant’s rent doesn’t cover. Some courts have reasoned that HAPs are different from rent and that the owner is entitled to get them even if he’s in the process of evicting a resident.

However, New York attorney Todd Nahins has seen the opposite result. A New York court threw out an eviction case because the owner accepted an assistance payment after the termination notice was sent. State courts appear to be split on this issue, so talk to your site’s attorney about whether you can continue to accept assistance payments. In some jurisdictions, warns Nahins, you must notify your HUD field office or contract administrator to hold or stop the assistance payments.

Mistake #3: Conducting Recertification While Eviction Process Is Pending

What happens if a resident you’re trying to evict is up for recertification? Some owners may think they’re required to go ahead with the recertification process. But completing the recertification process in this situation might not be the right thing to do. Again, a court may find that you’ve given up your right to evict by recertifying the resident.

How to avoid. If you’re evicting a resident who’s up for recertification, check with your site’s attorney to find out how to handle recertification. If you can’t delay recertification, you may be able to take steps to protect your eviction case, says Bancroft. For example, your attorney can prepare a form for the resident to sign that explains that though you’re recertifying him, you’re reserving your right to evict him. The goal is to make it clear to the resident that you’re not dropping the eviction case or letting him stay in the unit, explains Bancroft.

Mistake #4: Waiting Too Long to Go to Court

Once you deliver a termination notice to a resident, don’t wait too long to start the court case. If you wait too long beyond the termination (move-out) date listed in the notice, you might give up your eviction rights.

How to avoid. When you deliver the termination notice to a resident, your attorney should be prepared to file the eviction complaint as soon as possible after the requested move-out date. After all, there’s no reason to delay the process, because your goal is to make the unit available for a new resident. And by the time you’ve filed a termination notice, you’ve already done the necessary legwork in gathering evidence to support your eviction case. Once you’ve sent the termination notice, you and your attorney should pursue the eviction in court without delay.

Insider Sources

Daniel Bancroft, Esq.: Partner, Broderick, Bancroft and Goldberg, 313 Washington St., Ste. 207, Newton, MA 02458; www.broderickbancroft.com.

Michael Hepner, Esq.: Partner, West Weaver Hepner PC, 5990 Greenwood Plaza Blvd., Ste. 118, Greenwood Village, CO 80111; www.westweaverhepner.com.

Todd Nahins, Esq.: Partner, Borah, Goldstein, Altschuler, Nahins & Goidel, PC, 377 Broadway, 7th Fl., New York, NY 10013; www.borahgoldstein.com.

Sidebar:

Allowable Circumstances for Evicting a Resident

You can’t evict a resident for a single minor violation of the lease. According to HUD rules, you can evict a resident only in very limited circumstances [HUD Handbook 4350.3, Figure 8-2]. These reasons include:

• Material noncompliance with the lease (e.g., a resident refuses to give required information about household income and composition at recertification, substantial lease violations, fraud, repeated minor violations, nonpayment of rent);
• Drug abuse and criminal activity by a resident, guest, or other person under the resident’s control that threatens other residents’ health, safety, or right of peaceful enjoyment of the site;
• Material failure to carry out lease obligations required under state law (e.g., a household overcrowds a unit in violation of the local housing code); and
• Other good cause (defined by state and local laws, not by HUD).