When a tenant fails to pay rent, it can cause significant financial strain for a landlord or property manager. In some cases, the best solution may be to evict the tenant for non payment of rent. This blog post will outline the process for evicting a tenant for non payment of rent. Eviction is not a decision that should be made lightly. A landlord should consult with an attorney before taking any action. However, eviction may be the only way to recover lost funds and protect your investment. We’ll dig deep into how to handle a tenant whose behind in rent payment.

Contents

1. How do you serve an eviction notice for non payment of rent?
2. How do you file an eviction notice to pay with the court?
3. What happens after you've filed a notice to evict with the court?
4. What happens if my tenant responds to the court's complaint to evict?
5. What happens if my tenant doesn’t respond to the court’s notice to evict?
6. What should I put in my rental lease for tenants who are either late or don't pay rent at all?
7. What if your tenant asks for more time during their eviction process?

1. How do you serve an eviction notice for non payment of rent?

Whether you’re experiencing a late payment for the first time or you have a tenant with a long history of late payments, fixing the situation costs you time and money. Your first step is to determine exactly how much your tenant is behind. This is important. You don’t want to delay the process because your tenant has contradicting evidence proving they owe less than the amount you’ve reported in your notice and complaint.

To begin the eviction process, your tenant must be served with a notice informing them that they have not paid their rent. The type of notice you use depends on if they have recently paid their rent late or not. The type of notice you serve depends on the state in which you live. The most common type of eviction notice is a 3-Day Notice to Pay Rent or Quit, which informs tenants that they have three days from when they receive it to pay all past due amounts owed or vacate the property within three days.

Late Fees

While you most likely charge late fees for non payment of rent, your eviction notice may or may not include an accumulated late charge. Landlords should be aware that certain state laws may dictate how they can legally collect late fees. Also State laws on grace periods for paying rent varies. While most states do not legally mandate a specific number of days, many leases include an agreement that gives tenants 3 or 5 days after their normal due date to pay up if they're late with the monthly payment. You can double-check this by looking at what's written in your own lease as well as any local jurisdictions where such fees might be charged!

Serving Your Notice To Pay

After you’ve calculated the unpaid rent amount, your tenant is served a notice of unpaid rent. This late rent notice is your final effort to get your tenant to make a rent payment. It puts them on official noticthat they’ll be evicted if they haven’t paid rent by the required deadline.

Late rent notice contents

• The amount of your tenant's recurring rent
• The total dollar amount your tenant is behind in rent
• Late fees - As previously stated, depending on your state's landlord tenant laws, you may or may not be able to include late fees in your eviction notice.
• Dates - The date and time your tenant is being served a notice to pay as well as the last day the tenant has to comply with your notice.
• The person serving the eviction notice
• Your contact information for your tenant to respond to their late rent notice. 

How can you serve the eviction

• In person - You or a process server physically hands the notice to your tenant
• By posting - If your delinquent tenant isn’t home (or you’d rather avoid any uncomfortable confrontation) the notice can be taped to their door. For your records and proof of service take a clear picture of the posting with your phone.
• By mail - To avoid any claims of not receiving their notice, send a certified receipt, if you go this route. You’ll need proof if your tenant claims they never received it.

If the case goes to court, landlords may need proof that they tried in good faith to notify their tenant. The eviction notice should be posted on the tenant's apartment door or given to them personally with an explanation of what it means for them and how long they have before you take the next step in the eviction process.

Contacting Your Tenant

New and inexperienced landlords often think they can appeal to a tenant's sense of responsibility. They have a fear of losing “potential” income from a current tenant who may or may not pay. Seasoned Property Managers and Landlords agree you can’t convince a tenant to pay rent if they either can’t or have no desire to pay. You can however motivate a tenant who may just have their financial priorities out of line. That’s where a notice for non payment of Rent comes in. One phone call is more than enough as a follow up to your notice. You determine if you want to give them additional days before your file your notice with the court or if it’s just time to cut your losses and proceed right away with their eviction once the notice to pay deadline is up.

2. How do you file an eviction notice to pay with the court?

Evicting a tenant for nonpayment of rent can be a long, complicated process.  It’s not enough just to serve your tenants with an eviction notice, you must also file it at your local courthouse. If you fail to do so, you've done nothing more than made an empty threat. Whenever you evict a tenant you have to be prepared to follow through. What this means is, if your tenant still doesn't pay after you've provided them with a notice to pay you must file the proper paperwork with the court. 

Other tenants watch how you handle evictions. If you become known as a “great” landlord who let’s tenants skate by with multiple months in back rent your delinquent rent payments have only just begun. The good news if you demonstrate that you’re tough but fair, you’ll earn the respect of your remaining tenants.

This will require scheduling an eviction hearing and making sure that both you and your tenant show up on time. After that, all that remains is for the judge to make his or her decision on whether or not your tenant should stay in their apartment. If they rule against them, then they will issue a writ of possession (or order), which allows you to legally evict your tenants from their apartment.

Filing non payment of rent document with the court

The Notice for Non Payment of Rent is just that. It’s a notice, not an eviction. The eviction process begins when you file your notice along with other required documents with the courthouse. Until you get to this stage many tenants may take your notice of delinquent rent as an empty threat. That’s because they’ve had previous landlords who would wait several months before actually filing a notice to pay with the court. During this time they’re able to spend money as throw away income or save up for a deposit on a new residence. Because of this, you have to develop an eviction policy that you stick by with few exceptions. Part of this policy must include knowing when to cut your losses by getting rid of tenants who aren’t paying as quickly as possible. 

After your initial notice to evict has expired, your next step is to complete all Court required paperwork for evicting a tenant for non payment of rent.  The court-required paperwork involved in filing for tenant eviction is as follows.

• Civil cover sheet
• Summons
• Complaint
• Military affidavit
• Filing Fee

While most evictions go through without going to court, prepare as if you were, just in case. Have a file with all of your supporting documentation. Don’t wait until you’re evicting your tenant. Documentation should be created on an ongoing basis as a part of doing business. 

1. Keep an up-to-date tenant payment history including rent receipts, and any late payment date(s).
2. Make sure your signed lease has a strong rent policy clause and what is the grace period if any.
3. Keep scanned copies of any previous warnings and notices. Make sure there’s a place for your tenant to acknowledge your late notice with their signature.

3. What happens after you've filed a notice to evict with the court?

You'll need to wait until you receive notice that it's been accepted by the court before you know where things stand. Ask the clerk for a specific deadline date your tenant has to respond to your filed eviction complaint. Remember the time for the tenant to respond starts from the date your tenant is served, not the date on which you file. Because of this, if you want to complete the process as fast as possible you will most likely use a process server to deliver the court summons to the tenant, as opposed to delivery by Sheriff or mail.

4. What happens if my tenant responds to the court's complaint to evict?

Once your case has been filed with the court, a summons and complaint will be served to your tenant(s). As suggested above, don’t serve these documents yourself. Use a third-party process server or local Sheriff. The process server and Sheriff are roughly the same prices to serve documents. The big difference is a process server will serve your tenant the same or the next day you filed your paperwork with the court. The sheriff, on the other hand, won’t serve the eviction summons to the tenant for several days. That’s because serving civil complaints for tenant evictions are lower on the Sheriff’s list of priorities.

If you mail an eviction notice, you’ll need to prove by certified mail receipt from the post office stating the date on which mail was postmarked and the date when delivery was confirmed. 

If your tenant responds in time to your complaint to evict you have the option to reply. It is highly advisable you hire an attorney. Doing so, in many cases the appropriate response can result in your tenant's response being dismissed. For example, your attorney may rightfully request the tenant deposit the total amount of overdue rent into the court's registry. By not complying with this request the court may rule in your favor without proceeding further.

5. What happens if my tenant doesn't respond to the court's notice to evict?

If your tenant doesn’t respond, your next step is to file for your writ of possession. This is the paperwork to start the process of actually removing your former tenant from your property. Once the judge signs off on your writ of possession you’ll pay for the sheriff to serve your former tenant. While a process server can be used to serve an eviction complaint, the writ of possession is usually served by Sheriff. The Sheriff will post a 24-hour notice for the tenant to vacate. If your tenant is still occupying your property after 24 hours, the Sheriff will have your former tenant physically removed if necessary.  

Court forms

• Motion for Clerk Default
• Motion for Final Judgment
• Final Judgment
• Non-Military Affidavit
• Writ of Possession
• Stamped Envelopes (Tenant’s address, Landlord’s address)

6. What should I put in my rental lease for tenants who are either late or don't pay rent at all?

When a lease is initially signed between you and your tenant you hope for the best but prepare for the worst.  With this in mind review and revise your lease to cover the following issues.

1. Do you have a late fee?
2. How much is your late fee?
3. Is there an additional fee each additional day the rent is late? (Consult your attorney and state laws to avoid “excessive” fees in the eyes of the court). Daily late fees, if allowed, may have a limited number of days and the amount you can charge.
4. When is rent considered late?
5. If there is a grace period, how many days?
6. Specify whether rent paid during a grace period is still considered late or not 
7. What forms of payments you are willing to accept and not accept (cash, check, money order, cashier's check, Zelle, western union, Paypal, credit card, etc.)?
8. What payment methods carry additional fees for the tenant (for example, cash requires the time and gas for someone to pick up and deposit, not to mention the potential safety risks involved).
9. If late fees, unpaid rent, and/or property damages can be deducted from the deposit during tenancy. 
10. Do not include any clause that calls a tenant's deposit “non-refundable security deposit”. A security deposit by legal definition is refundable. Any money that is non-refundable should be listed as a fee or a fine.
11. What happens to your tenant’s deposit if they move out before the lease expires or without sufficient notice (i.e. 30 days)?
12. Returned check fees (if you accept checks)
13. What day of the month rent is due

You may consider a clause in your lease that allows you to deduct late fees and rent from security deposits prior to eviction. If you include this clause make sure your tenant signs a receipt with an itemized deduction from their security deposit acknowledging it. While you don’t want your tenants “living out their deposit” by using it to pay rent, this may be your only option to actually get paid. More importantly, if you do have to evict for non payment of rent, you’ll have less of an argument over returning security deposits if you’ve applied some or all it towards rent and late fees. 

If you use this clause, require your tenant to replenish their security deposit within a set amount of days. If you believe you have a good tenant, you can create a short-term payment plan towards replenishing their deposit. If their security deposit has not been restored within your time frame it becomes a lease violation subject to eviction. Lease violations require different paperwork than eviction for unpaid rent. 

When it comes to grace periods, in most states (if not all) grace periods aren’t a legal right. It’s just common courtesy landlords extend to tenants. Depending on your lease, a grace period can either mean how many days you’ll wait to serve a notice to pay or it could mean you won’t charge late fees until after a period of time. Check your state laws concerning grace periods. 

Don’t just automatically require your rent due date to be on the 1st of the month. Find out what days your tenant’s job pays them. Scheduling your rent closer to their pay dates may reduce the risk of their running out of money before rent is due. The idea is to make sure you get paid before they have to pay any other bills.

As far as leases go, make sure you enforce yours. This means you should be familiar with each and every clause. By just enforcing your lease you can avoid and/or reduce a significant amount of rental problems. 

7. What if your tenant asks for more time during their eviction process?

What if your tenant is a few days or weeks behind in their rent? They'll often try to tell you that they're struggling financially and ask if you can give them some extra time. At first, it may seem tempting to agree—it's easier than going through all of the eviction paperwork, right? Don't do it! You might feel like helping someone out, but as a landlord, you have responsibilities too. Even if you don't want to feel like the bad guy by telling them no, remember that your responsibility is ensuring that there are affordable homes for everyone—including tenants who follow the rules. It might be difficult at first (no one likes saying no!), but continuing with an eviction process for late payments can be better for everyone involved.

When it comes to late or partial rent payments by the tenant, schedule an apartment inspection as soon as possible to make sure the property is not being damaged. Payment problems often translate into other irresponsible behavior such as property damage. 

Signs of wear and damage should be documented and photographed. Keep all documents in case they’re needed in court. Once they’re identified, repair any damage and ask tenants to fix what they’re responsible for. Schedule another review to make sure the issue is resolved. Don’t wait until after you’ve evicted a tenant to prepare for the next tenant. By addressing as many repair issues before you have a vacancy you’ll reduce your turnover timeline.    

Avoid “constructive eviction” or “self-help evictions”. This means doing things in a malicious manner in order to make the tenant move.  Changing locks without going through the court, and turning off utility services before the eviction process is complete is never acceptable or legal. Threats, humiliation, or physical attempts to evict a tenant is also considered illegal. These tactics will only make a bad situation 10 times worse. If your tenant decides to sue, the odds are in their favor.  

If your tenant offers a partial payment, don’t accept it, unless you’re willing to take the risk of starting the eviction process over again. In some states, accepting any funds from your tenant voids any pending eviction paperwork. So if they don’t follow through with the rest of your payment, you’ll have to serve them a new notice, wait until it expires, pay court fees again, and file a new complaint. As unpleasant as it may be, letting the court do its thing is usually the best route.