The legal procedures to terminate a lease tenancy, and for the eviction of a Tenant, are provided in the lease and by law. Where inconsistent, the statutory requirements govern.
From time to time we hear from our Landlord clients their “understanding” of a reason why a Tenant cannot be evicted. We have also heard questions from our Landlord clients suggesting their belief that the requirements for eviction are more than what are required by law. Similarly, and more often, we hear from Tenants in response to a summons various reasons why in their opinion the Tenant cannot be evicted. In general, these “reasons” are myths. These myths include, but not by exclusion:
- A Requirement of Ninety (90) Days Notice. There are various different requirements for termination of a tenancy, depending upon the nature of the rental premises and the lease. At this time there is not a general ninety (90) day or three (3) month requirement.
- Thirty (30) Days Notice After Entry of a Judgment. The judgment is effective immediately, enforcement on the manner allowed by law may proceed immediately and no further notice or delay is required for its enforcement unless the Tenant files an appeal and posts an appropriate bond.
- Thirty (30) Days Notice After Default in Rent. Generally, after default in rent, although the Landlord is required to make demand for immediate payment, no further notice is required. The terms of the lease, however, may include additional notice provisions.
- A Tenant who is Pregnant Cannot be Evicted. A tenant who is pregnant is not protected from eviction due to that circumstance if the tenant has failed to pay rent or otherwise failed to satisfy the remaining terms and conditions of the lease. Although a Tenant cannot be discriminated against because of the pregnancy, that pregnancy is not a shield to protect her when she has defaulted upon the lawful terms of the lease.
- A Tenant with Small Children Cannot be Evicted. Similar to the pregnancy issue, the question before the court is only whether the Tenant has defaulted upon the terms of the lease.
Unfortunately, Landlords who do assume these myths are true will delay a proceeding to evict a Tenant who is in default, increase the amount of rent due, and increase the probability that the rent due will not be collected.
In addition, there are myths concerning the eviction proceedings, once initiated. Many Tenants, and some Landlords, erroneously believe that the court proceedings will take several months. In Jefferson County,Missouri, the judicial proceedings usually are completed within four to six (4-6) weeks of the date of filing, and the Sheriff’s enforcement of the judgment for possession is usually completed within five to eight (5-8) weeks of the date of filing. Courts in surrounding counties in which we practice are often similar.
Delays in the judicial proceedings can arise due to various circumstances. These delays include, although not intended to be an exhaustive list, the following:
- The attorney holds the paperwork received from the Landlord client to process several cases at once. At the Thurman Law Firm, recognizing the importance of pursuing these matters expeditiously, we prepare the required pleadings and file them as soon as possible after receiving the information from the client. We do not hold them until a large group is collected and can be filed.
- The Landlord does not provide an accurate address for service of process on the Tenant. If this occurs, this may delay the proceedings if an alias summons is required for service, and will certainly increase the expense of the proceedings.
- The Landlord provides an inaccurate statement of the amount due. When this occurs, Tenants are more likely to contest the claim, delaying the case for a trial. If not identified until trial, it may also delay the decision of the trial judge.
- A judge’s vacation or conference schedule coincidentally falls when the case would otherwise be set for hearing. This is unfortunate, but does occur from time to time. Usually, however, this will only delay a case one to two (1-2) weeks. If it appears that it will cause a greater delay, at the Thurman Law Firm we will make reasonable efforts to have the case reassigned to another division.
- The Tenant files a petition in bankruptcy before or during the eviction proceedings. Under the United States Bankruptcy Code, the filing of the petition in bankruptcy stays (prohibits) further prosecution of the eviction proceeding until relief (consent) from the Bankruptcy Court is received. At the Thurman Law Firm, we will counsel our Landlord clients with respect to their respective rights when the Tenant files for bankruptcy. We have on behalf of many landlords filed a motion in the Bankruptcy Court for relief, requesting approval to proceed with the eviction of the Tenant, and when granted that relief finished the prosecution of the eviction proceeding.
- Landlord is not available for trial on the trial date. Generally, a witness is needed to provide evidence in support of the Landlord’s claim. A manager often serves this purpose. If the Landlord is the only person involved, however, his or her unavailability may result in a delay of the case. The Landlord cannot provide the labor needed to remove the Tenant’s personal property from the premises on a day available to the Sheriff. Following the judgment in favor of the Landlord and the entry of an order of the Court, the Sheriff will remove a Tenant and others present, will keep the peace, but the Sheriff will not provide the labor required to take possession of the premises. Instead the Landlord must provide that labor to remove the Tenant’s personal property from the rental premises (including a mobile home if applicable) and to secure possession of the premises, including changing the locks.
Due to our experience at the Thurman Law Firm with respect to handling Landlord/Tenant matters, we recognize in advance the potential for delay in a proceeding and will counsel our client concerning that potential and the options available to reduce or eliminate that delay.
