Serving your tenant with an eviction notice

There are many financial benefits to owning rental property, but one drawback many landlords must occasionally contend with is that of the problem tenant. If you find yourself in such a situation where you have no choice but to evict, you must first serve your tenant a notice of eviction, also sometimes referred to as a notice to quit.

The eviction notice

While you may have already sent a termination of lease letter, such a document is not the legal equivalent of an eviction notice, which is required before you can begin the legal eviction process. The eviction notice informs your tenant that you intend to evict them and, depending on the type of notice you send, lets your tenant know if there is anything they can do to avoid their eviction.

State laws vary regarding eviction notices. Many states require “just cause" to evict a tenant, which means the tenant must have done something that generated the need for eviction. State laws also regulate the information that must be provided to a tenant in an eviction notice, such as the specific reason for eviction and any relevant time periods. So before you begin the process, it's important that you either fully research the eviction requirements in your state or consult with an attorney experienced in landlord-tenant issues.

Even in states where a landlord is permitted to evict a tenant without cause, you must still provide your tenant with an eviction notice. In such landlord-friendly states, you can't evict without a reason if the lease agreement between you and your tenant is for a fixed term. You also can't evict for a discriminatory reason or as a means of retaliation.

Types of eviction notices

The type of eviction notice you use depends on your particular situation. Each type of notice includes the term “quit," which, in the context of an eviction notice, means “move out."

• Late payment of rent. When a tenant is late with their rent payment, you typically serve them with a notice to pay rent or quit. This type of notice sets out a specific period of time during which your tenant can pay the outstanding rent plus any late fees you might impose. In most states, this time period falls between three to five days, which is why you may have heard this type of notice referred to as the “three-day eviction notice" or “three-day pay rent or quit notice."
• Lease violations. In cases where your tenant is engaging in a particular behavior that violates the terms of the lease, such as smoking or having pets when such activities are not permitted, you should use a notice to correct/cure or quit. State laws vary as to the amount of time you need to give your tenant to correct the issue.
• Severe violations/infractions. When a problem is particularly severe, such as persistent and ongoing damage, continuous lease violations, a pattern of late or no payments, or the commission of a serious criminal act, you may not want to give your tenant the opportunity to fix the issue. In such cases, you would use a notice to quit, often called an unconditional quit notice, which tells the tenant they must move out by a certain date, with no chance to avoid eviction through payment or action. Before issuing such a notice, however, it's important to check your state's laws to make sure the problem you're dealing with falls within the range of activities for which such a notice is permitted.
• Termination of lease. The 30- or 60-day notice to quit is used in situations where the lease agreement is month-to-month rather than for a fixed term. In such cases, you're terminating the lease without cause and, as with the other types of eviction notices, proper research into local laws is required to make sure you can legally serve such a notice.

Once you've drafted your eviction notice, you must serve it on your tenant. Be sure to do your research first. If you end up having to go to court to evict your tenant, you will need to show proof that you served your tenant in compliance with any relevant state laws.

The legal eviction process

It's important to understand that, while essential to the eviction process, simply serving the notice doesn't mean you can subsequently evict your tenant. If the tenant ignores your notice, you must go to court to seek a court order.

You should also be sure to adhere to all legal requirements when drafting your notice of eviction. If you've left out anything that's legally required, you may find the court siding with the tenant and denying your eviction request.

The prospect of eviction is not a pleasant one but may be unavoidable in certain situations. By serving your tenant with a properly drafted eviction notice, you will be more likely to obtain a court order for eviction in the event your tenant refuses to remedy the default or to vacate the premises as demanded.