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barristerinky
barristerinky, Attorney
Category: Landlord-Tenant
Satisfied Customers: 34796
Experience:  Attorney over 16 years, landlord 26 years
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When a tenant doesn't make any effort to pay their rent why

Customer Question

When a tenant doesn't make any effort to pay their rent why can't they be evicted in a orderly manner instead of waiting till the landlord has to be cheated out of several months rent?
Submitted: 1 year ago.
Category: Landlord-Tenant
Expert:  barristerinky replied 1 year ago.

Hello and welcome! My name is ***** ***** I will try my level best to help with your situation or get you to someone who can.

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Can you tell me what state this is in?

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Is the tenant employed?

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thanks

Barrister

Customer: replied 1 year ago.
MO is the state and she is employed at the post office.
Expert:  barristerinky replied 1 year ago.

Ok, to answer your question directly, the reason that the landlord has to go through the proper legal process to evict the tenant is because under the US Constitution, every person is entitled to "due process" as established by our laws. This means that in order to terminate someone's rights, the other party has to follow the established legal process to do so.

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I could go into how the US was established to get away from monarchy rule in Europe where the royals (i.e. kings and queens) made things up as they went along, but you probably get the idea...

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With that said, if the tenant is late on their rent, you can give them a written 5 day notice as soon as they are late and then if they don't pay, file a formal eviction action in court. (As a landlord, you probably already know this, but just in case you didn't...)

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This is the process:

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In Unlawful Detainer actions, the landlord may demand both possession of the property and damages for past due rents, profits and any damages occasioned to the premises by the tenant. The statute requires that the court double the damages awarded and double the amount of rents and profits until restitution is made.

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The most frequently used method of evicting an occupant for non-payment of rent is a "Rent and Possession" action. A suit for "Rent and Possession" means that the landlord wants to regain possession of the premises because the tenant has not paid rent. The landlord is only required to demand rent before suing the tenant. If the tenant pays the entire amount of back rent due and owing along with the court costs on or before the court date, then the landlord is required to dismiss the rent and possession lawsuit

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The landlord is required to demand the rent by serving an 5 day demand to pay or vacate notice before the lawsuit is filed. In order to file this suit, the landlord should go the Circuit Court that handles evictions for the jurisdiction where the property sits.

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The landlord should tell the Court Clerk that they need to file an eviction case for Rent and Possession. There will be a filing fee. The Court will prepare a Summons and serve (deliver) it on the tenant. The Summons will tell the tenant when and where the court date is. If the tenant does not show up to court on the court date, the landlord will win by default. The judge can award possession as well as money damages.

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If the tenant does show up, then the judge will examine evidence and allow both sides to tell their side of the story. It is advisable that the landlord bring all witnesses, documents (eviction notice, lease, etc.), and other evidence to prove their case. If the judge rules for the landlord, the judge can award possession, damages (back rent), or both.

A judgment becomes final 10 days after it has been entered. An appeal will not stop the execution of the judgment unless the defendant posts a bond in an amount approved by the judge who presided over the action. After an order for possession is entered, the Sheriff executes on the order and ejects the occupants. The client must provide movers and securing personnel at the time of eviction. Each sheriff has individual requirements for the number of movers.

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But as for the money, if the person is employed at the post office, it is unlikely that they will quit so you can file a for a writ of garnishment against them for any lost rent and damages you have been awarded and then garnish their wages until the judgment is paid.

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So you should be able to get your money, it will just take some time..

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As an aside, in addition to being an attorney, I have also been a landlord for over 26 years...

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thanks

Barrister