There’s nothing more distressing to a landlord, property owner or manager than having to remove a tenant who refuses to leave when their lease expires. It can be an expensive and time consuming process. Moreover, the entire procedure is full of bureaucratic red tape and legal land mines. There are, however, some simple steps one can take to lower the cost of removing a tenant and expedite the removal process. We’ll exam each below.
Understanding Your Situation
A “holdover tenant” is a tenant who stays in a property after their lease has expired. If a landlord continues to accept rental payments from this tenant, they can legally continue their occupancy without an explicit, legal contract (a lease) in place. Most landlords have a clause in their lease agreement that handles this situation to avoid the legally ambiguous holdover tenancy. Some automatically renew the lease for a full year, others switch their tenant to a month-to-month agreement.
Accepting rent from a holdover tenant without a formal agreement in place can quickly turn into a messy situation. State laws vary, but you may complicate or limit your legal recourse to remove them by taking a payment. For this reason, we strongly advise against it. If you do decide to accept a payment from your holdover tenant, their occupancy will fall into one of two categories:
Tenancy at Will
At-will tenancy occurs when a tenant occupies and pays for a property without any formal lease agreement in place, but with the consent of both the tenant and the landlord. At-will tenancy is subject to the will of both the tenant and the landlord (hence the name). In other words, the tenant can choose to leave and stop paying rent at any time, and the landlord can choose to stop accepting rent and ask the tenant to leave at any time. Some refer to tenancy at will as a month-to-month lease, however, month-to-month leases often have a formal agreement in place that governs the occupancy and determines how and when that occupancy can cease.
Tenancy at Sufferance
Tenancy at sufferance occurs when a tenant occupies and pays for a property without any formal lease agreement in place, without the consent of the landlord. A landlord can accept rent but still desire that the tenant vacate the premises, but as noted above, in some states, this may complicate or extend the eviction process.
When it comes to holdover tenancy, ambiguity is your enemy. Either set a new lease, continue an existing one, or do not accept money. If you forego the latter two options and your tenant does not leave, they become a trespasser in your property.
Options for Removing a Tenant Whose Lease Has Expired
The tenant removal process is different for a person who overstays their lease versus a tenant who is a simple deadbeat and fails to pay their rent. The law often requires a slightly different set of procedures for each. If the tenant will not leave after their lease agreement has expired, you have two options for removing them:
You know it, you hate it, but it works. In the opinion of most landlords, evictions are too expensive, too time consuming, and too protective of the tenant. But evictions are also the only legally permitted means of forcibly removing a tenant from your property.
If you have a holdover tenant and you did not accept any additional payments, you’re in some luck (but don’t get too excited): in some states, you do not need to provide a 3-day, 7-day, or 30-day notice to quit. You can immediately file an eviction if the tenant refuses to leave the property. However, this is likely only the case if you did not accept any additional payments. If you took a rental payment from the tenant after their lease expired, you’ll need to provide all the normal notices.
When your tenant overstays their lease, you will still, however, be required to go through the normal eviction process. This means you’ll likely file a formal eviction with your local municipality, attend a hearing before a judge, and abide by their ruling.
Again, as long as you didn’t accept any payment from the tenant beyond the agreed upon duration of their lease, the case should be decided in your favor in a relatively quick manner. Still, evictions can take weeks and, in some circumstances, months to resolve themselves.
From here, if the tenant doesn’t willing leave, you’ll likely need a sheriff, constable, or police officer to actually force the removal of the tenant (although again, this depends on your state).
In other words, to summarize, evicting a tenant that has stayed past their lease agreement is effectively no different than evicting a tenant in the middle of their lease ; you simply get to jumpstart the process.
2. Cash for Keys
There is another option for getting rid of a holdover tenant that can be applied at any time in any situation. It does not involve lawyers, courts and judges and it often expedites the entire process. The drawback: it is a distasteful and, from the landlord’s point of view, profoundly unjust alternative. Nevertheless, it often works.
“Cash for keys” refers to an agreement between a tenant and a landlord for the tenant to move out on an agreed upon date in exchange for cash. As unseemly as it sounds, many tenants will pack up and go if they are paid.
If you decide to go this route, we recommend starting small – you’d rather this not turn into a negotiation, but it technically is. Offer them an additional portion of their security deposit if they leave quickly and quietly. Throw in ten percent of their rent if needed. Do not – and we repeat: do not – give them the money until you have their keys in hand. Make it a single exchange once they’ve moved all of their belongings off the premises.
This may feel like blackmail, and it is surely a severe injustice, but paying your bad apple tenants to leave can often be the more economically rational decision. Evaluate your circumstances, do your best to remove your emotions from your consideration, and determine whether or not cash for keys is the right business decision.
Unfortunately, some tenants know how costly the court ordered eviction process can be for a landlord, and they use this as leverage. If their negotiated price no longer makes financial sense, or if “cash for keys” simply doesn’t work, you can start the formal eviction process.
What You Cannot Do When Your Tenant Refuses to Leave
The above two options may be frustrating, but in almost all cases, they are your only options. Tenant-landlord rights have been heavily litigated in all states, and the worst thing you could possibly do is unwittingly violate a law that puts you in a worse position than you’re currently in.
Here are a handful of actions you should never take when trying to remove a tenant:
– Do not change the locks
If the tenant won’t return the key, what better way to force them out than by making it so that their key no longer works? This is illegal in almost every state and will result in fines, some quite hefty. It also may damage your case in front of a judge when eviction time does come around
– Do not turn off the power
Just like changing the locks, in an effort to protect the safety and rights of the tenant, this is illegal in nearly all circumstances.
– Do not throw their possessions out or otherwise dispose of their belongings
Not only can removing a tenant’s possessions without their consent result in a fine, it can also result in criminal proceedings. Don’t do it.
– Do not harass the tenant or anyone occupying the property
As part of your eviction proceeding, a judge will likely require that you provide them the correspondence you had with the tenant. As hard as it may be at times, it is critical that you ensure your behavior is professional in those interactions. Harassment can endanger your ruling and result in criminal proceedings.
How Did Things Get Here?
If you find yourself in a situation in which your tenant will not leave your property after their lease has expired, it means they were at least a decent enough tenant to make it through the entire lease. They might have even been a great tenant – clean, paying on time, respectful of their neighbors. That’s why it’s all the more frustrating to find yourself in a situation in which these once good tenants have broken bad.
To prevent this from happening, there are a few relatively simple steps you can take. Firstly, be clear in your communication to the tenant. Even if you’re not legally obligated to provide a notice (your lease should include a termination clause already), it can be helpful to remind the tenant. Perhaps your tenant that just won’t leave can’t – they forgot their lease was coming up and they haven’t found another place to live.
Secondly, and this is a good general rule of thumb, do your best to foster a positive relationship with your tenant. If they like and respect you as a landlord, they’ll probably respect your agreement. But always remember, your tenants should see you as a business owner first.
Finally, prevent bad tenants by only finding good ones. An effective tenant screening process is your best defense against evictions – stop them before they can even happen.
Regardless of how you got here, it’s probably time to go through the painful process of removing the tenant. If you can bring yourself to swallow the distasteful pill, paying off the tenant can be a quick and dirty solution. Alternatively, an eviction may be necessary. Whichever you choose, make the decision with a clear, rational understanding of your situation. And as always, be sure to consult your local laws before taking any drastic action.