There is a lot of talk these days about evictions. Where landlords were stymied by the initial eviction bans, now that some states have extended their bans into the fall and the federal government announced an extension is in the works, frustration is boiling over into action, with landlords filing lawsuits to clear the way to evict non-paying tenants.
As these moratoriums expire or are overturned, landlords are rumored to be queuing up to hit the courts and boot tenants who can’t — or won’t — pay up.
It’s no wonder, too. Some landlords haven’t been paid full rent since March. They’ve endured calls for rent strikes or rent cancellation all the while juggling their own finances. To add insult to injury, there are paying tenants out there who are willing to move in — but can’t.
The number of upcoming eviction filings is difficult to predict and estimates so far have been wildly divergent. But it’s likely to be overwhelming.
That presents its own series of complications. The expiration of the eviction bans may be only the first hurdle landlords will need to overcome to return to profitability.
A rush of pandemic non-payment claims is going to take some time to sort out. The fact that the moratoriums are expiring does not add staff or resources to already overworked courts, some of which still are operating on reduced hours.
When courts are overworked, one common administrative strategy is to prioritize cases based on urgency, such as tenants who are a danger to health and safety. Another strategy is to pressure the parties in “non-urgent” cases to resolve the problem themselves through mediation. It is possible that an eviction, once filed, is going to take longer than expected. These delays likely will reverberate with process servers and sheriffs’ offices as well, dragging out recovery of the rental unit.
And ban or no ban, no one knows yet how the judges feel about evicting tenants impacted by the pandemic.
If the case does make it to hearing, the pandemic presents tenants with some viable defenses. The most likely to be raised is impossibility. The tenant may successfully argue that the breach of the lease is not intentional, but outside their control. Another possible claim is substantial performance if the tenant has made some payments. Or a judge may find that force majeure or frustration of purpose clauses apply to a tenant’s situation. These defenses are rarely used — reserved for precisely the situation we are in. We don’t know who a judge will sympathize with more — the tenant who lost their income or the landlord who is losing theirs.
Landlords who are set on going to eviction court should prepare for what they are likely to encounter when they get there. Take steps to avoid additional income loss by:
Working with a local attorney to get the best advice on how to present the case — and win;
Be prepared for judges who may want to see what efforts a landlord has taken to resolve the case outside of court;
Be certain all documentation is in order and irrefutable; and
Consider alternatives to eviction — like waiving early termination fees or offering to return the tenant’s security deposit in exchange for a voluntary exit. Given today’s environment, that may be the least costly alternative to protracted legal action.
This post is provided by Tenant Verification Service, Inc., helping landlords reduce the risks of renting with fraud prevention tools that include Tenant Screening, Tenant Background Checks, (U.S. and Canada), as well as Criminal Background Checks, and Eviction Reports (U.S. only).
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Disclaimer: The information provided in this post is not intended to be construed as legal advice, nor should it be considered a substitute for obtaining individual legal counsel or consulting your local, state, federal or provincial tenancy laws.
