Chapter Five - Eviction

Here's a typical situation: Al is late with rent—again. The landlord, who depends on rental payments to pay his mortgage and other expenses, gives a 30-day notice to move out. Instead of packing up his stuff and finding friends to stay with, Al goes into a state of "denial" thinking it will go away like a bad dream. Thirty days pass. Al's still there and owes another month's rent. The landlord files suit to repossess the unit and recover what he owes. On court day, the Judge asks Al to pay $800 in back rent, $80 late fees, and $300 for the landlord's court and attorney fees. Al doesn't have the $1180, of course, so it is reported to the credit bureau, a red flag to all future landlords and other creditors that Al is a credit risk. 

Ten days later the landlord and sheriff show up and put Al's stuff in the street and anyone walking buy is likely to take something.

The landlord goes back to court to garnish Al's wages and Al is fired as a result.

Yes, it's a sad story . . . and it happens every day.

Don’t let it happen to you.

 

THE EVICTION PROCESS

Because of competition for affordable rentals, the trend in the last few years has been to evict quickly. The landlord knows he/she can easily re-rent the unit. If you can't fulfill the conditions of your lease, don't expect the landlord to be lenient.

Tenant Tip: Do all in your power to avoid eviction. Keep an extra month's rent stashed in a safe place for emergencies. If you know rent will be late, communicate early. You might offer a partial payment along with a Promissory Note stating the exact date(s) you intend to pay the rest. Many landlords will understand if you have unexpected expenses and they will work with you, if you just ask.  The worst thing you can do is not let your landlord know why your rent is late.  If you're lucky, your landlord may delay filing a Detainer Warrant.  Then pay as promised or the landlord will evict you.

 

Notice OF EVICTION

The type of eviction notice you receive depends on the type of lease violation. The term – or number of days the notice must provide – varies depending on the type of eviction.  Notice must always be in writing and delivered to you or another adult in the house. If it is sent by certified mail—and you fail to sign for it—it is still considered legally "delivered."


Type: Cancellation of a month-to-month rental agreement.  Where there is no lease, a "reason" is not necessary for termination.

Term: At least 30 days before the next date that rent is due. In many cases this may require a full month term notice. For example: if rent is due on May 1, and you receive your notice on April 20, your final day to be out should be May 31st.

 

Type: Late rent paid on a weekly basis.

Term: 10 days’ notice.

 

Type: Late rent paid on a monthly basis. You may have a grace period of a few days written into your lease. The landlord may deliver the notice immediately after the grace period for the late payment of rent ends.

Term: 30 days unless otherwise stated in your lease. Larger complexes may use lease language waiving your right to 30 days' written notice. You are presumed "notified" of a pending eviction if you are late with rent. You may get a "demand for full payment" with a due date. After that, you will get a detainer warrant or a letter from an attorney telling you to vacate the premises (with legal fees added).

 

Type: Some rule of the lease is broken (other than late rent). This could include noise, unauthorized guests, parking, negligent damage or other violation, which should be stated in the notice.

Term: This is a warning notice. You are given 14 days to correct the situation, but if it happens again within 6 months, you can be evicted with one more 7-day notice. [2]

 

Type: Tenant threatens safety or welfare of other tenants or their property. This could include theft, vandalism, drunk driving, fighting, or other acts or threats of violence by you or your guests.                                  

Term: When a serious breakdown occurs, only 3 days’ notice is required.[3] There must be a witness to the violation. Remember: you are legally responsible for the behavior of your friends and children. If the landlord has to call the police, you might lose your lease.

 

Type: Sale of narcotics or prostitution on premises.
Term: If neighbors present good evidence of drug dealing or prostitution at a certain address to the police or the District Attorney, the District Attorney can order the landlord to give you a 10-day eviction notice.


The 4 steps of eviction

The 4-step process described in the next few pages usually starts when the tenant fails to pay rent on time or breaks another provision in the lease or rules.

Landlords in Hamilton County must follow these steps. Usually the best thing is to get out within 30 days and avoid some of the attorney fees. Put your stuff in storage and move in with friends or relatives until you can get back on your feet. The Department of Youth and Family Development or Metropolitan Ministries (phone numbers and information in the Resource Directory starting on page 69) might pay one month's rent if you prove you can pay the next month.

During the eviction process, by law the landlord cannot:

  • Lock you out,
  • Cut off utilities,
  • Remove appliances,
  • Throw you or your stuff out, or
  • Threaten to harm your person or possessions.

If any of these happen, call the police and have your copy of this section of Rentwise! ready to show them.  Get a copy of the police report.

If you believe there is no just cause to your eviction and have a solid case, make an appointment with Legal Aid of East Tennessee or another attorney to fight the eviction. Keep a record of all events.  Note that if a landlord does any of these things above, you may have to take him or her to court at your expense.  So the best thing to do is avoid the situation if possible. 

Court Day

  • Be There: The detainer warrant will state the time and place you are to appear. Be on time and plan to spend about three (3) hours because the docket may be full. If you don't show up, the landlord can automatically be granted whatever rent he claims you owe. Be in court (even if you think you'll lose) with rent receipts – especially for any rent you've paid since receiving the notice of eviction.
  • Dress Nicely:  Wear a suit or jacket and tie. Women should wear conservative business clothes. Courts are conventional. Your appearance tells the judge whether you take the situation seriously or not.
  • Be Prepared:  The judge will ask a few questions. Listen first, then answer directly and submit your documentation. Don't vent your anger or try to list all the misdeeds of the landlord. Stay with the issue at hand and get to the point. If you're in court because you haven't paid rent, don't choose that time to talk about poor maintenance, unless you've followed the law in paying for repairs yourself (see Maintenance in this chapter). Repair problems are not a legal reason to withhold rent unless the unit is truly uninhabitable. Practice beforehand if you want to bring important new information to the proceeding. Make your points briefly and clearly and look the judge in the eye.
  • Be Aware:  Like it or not, you're in the presence of power. Be respectful and be humble. Attitude will get you nowhere fast. The judge has heard a lot of cases and a lot of excuses. Make sure to present facts only. You will prejudice the court against you if you become loud or argumentative, or if your story is hard to understand.

 

Judgment/Garnishment

You will have 10 business days after your court date to pay the amount awarded by the court to the landlord. This may include back rent, late fees (not to exceed 10% of rent owed), cost of damages (if it exceeds your deposit), and at least one-third of the landlord's attorney fee and court costs (which usually add another $250 or so to your bill).

If the judgment isn't satisfied, the landlord can garnish your wages, which means he or she may have your employer deduct the amount of the judgment from your paycheck. Some employers will fire an employee if this happens.

Payment Plan to Avoid Garnishment: If you don't have the money to satisfy the judgment, ask the clerk of General Sessions Court to file a motion to make affordable payments to the court at regular intervals. You must sign an affidavit swearing that you are unable to pay by other means. You'll need to show proof of income (recent paycheck stub) and a list of monthly bills as proof of poverty. If this motion is granted, your wages won't be garnished as long as you make payments as promised.

 

Appeals

Seldom does a tenant have grounds – or the means – to appeal an eviction, but if you have good documentation that your rights were violated, you can file an appeal within 10 days of the judge's decision.

Grounds for appeal might be:

  • You are a victim of retaliatory eviction.
  • You have received a 3-day notice and you know the landlord does not have grounds for such short notice.
  • You failed to receive proper notice.
  • You can establish a pattern of discrimination against minorities, disabled people (including those with AIDS), families, or religious groups.
  • A new owner is not honoring your lease agreement after purchasing the building you live in.
  • The landlord is evicting you for personal reasons rather than lease violations. You must have witnesses and documentation.

Don't waste time and money on an appeal if your rent is behind or if the landlord can show a history of complaints about you. If you appeal for "lack of proper notice," it will be very hard to prove that you didn't get it unless you can show a pattern of the same behavior with other tenants. You need witnesses for all allegations.

You can go to the General Sessions Court Clerk's Office and file the appeal yourself, but it's best to get a lawyer. An appeal will not allow you to stay in the unit longer unless it's a special situation handled by a lawyer.

Note: To appeal both the judgment and the right to stay in the property, the tenant must post a cash Appeal Bond equal to one year's rent. If the tenant loses the appeal, the whole debt (back rent, damages, and court costs) will be subtracted from the bond.

However, if the tenant is willing to move out, but is protesting the money judgment, and is unable to post a cash bond because of "poverty," he/she may sign a Pauper's Oath in lieu of an Appeal Bond and swear that he/she is "justly entitled" to seek relief from the judgment of the court.