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CalAttorney2, Attorney
Category: Landlord-Tenant
Satisfied Customers: 10221
Experience:  I am a civil litigation attorney with experience representing both landlords and tenants in residential and commercial property disputes.
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I live in Baton Rouge, Louisiana where I have finally sold

Customer Question

I live in Baton Rouge, Louisiana where I have finally sold my townhouse; my tenant and I revised the lease, $100 reduction in rent while on the market, if sold, the last month of rent was free/reimbursed with a 30 day notice. $1200 rent free. House is under contract, the 30th day was the 19th at 5:00 per my email and request. I am schedule for final walk through today at 3 and close of home at 11am on Monday the 21st. Yes, I was down to the wire. Asked tenant if they could move one day early because of only one day for any issues. They said no because friends were helping them move and could only move on the one day, even though I know their new home was vacant and I offered to pay for them if charged for early move in at their new location. They requested to be out Sunday the 20th to clean. I said no because I had the walk through and needed to make sure the home was up to my standard. When I did give them the original 30 day notice, it was in email at 8:35pm, however, I specified per our agreement, they were getting $1200 rent reimbursed and I requested check out time 5pm. Well, last night the house was not empty, it was dirty, she was on some sort of drugs, for 3 hours she was in one room sweeping. We stayed and waited at neighbors past 9pm. She said she was going to be out that night. She told me several times she wanted me to be proud of her, she had scrubbed the cabinets for me, she told me to evict her- 5day notice, she was not leaving. Now all furniture was gone. She seems to be delusional or not right. I will go back this morning. If she is still there, can I ask police escort me to ask her for the keys and to leave the premises? Since she has went over her lease, I have read that I can charge for a whole another rents month because she is a holdover? Can I charge her for my time to go over there multiple times and for cleaning? Can I charge her for other damages?= I have another rental that I was to go over and do work today, I now haft to have someone else pick up materials and deliver because I haft to be over at the townhouse to get ready for inspection. My other rental has a deposit on it, there are major issues I haft to have work done today, otherwise, could delay or I could lose my tenant. What all rights do I have? thanks.
Submitted: 7 months ago.
Category: Landlord-Tenant
Customer: replied 7 months ago.
I forgot she had sent me a text at 7pm telling me I could keep her deposit. It was not about money, she was staying because she wanted the place to be very clean for me, she wanted me to be proud of her. When I went there she offered to give me $1200, I told her I wanted her out of my home. It was not about her. Since I have a text, can I keep her deposit since she activated/started another month since she continued to occupy the place and since she told me? I am so exhausted, I only want the money to because she needs to have consequences to her actions. She wanted until Sunday and it she has Sunday now. I read when a tenant goes over their date to get out of the home, another rent of month is due and I can ask for it. Thanks.
Expert:  CalAttorney2 replied 7 months ago.

Dear Customer,

Unfortunately you are not dealing with a "holdover tenant" in this matter, you are dealing with a tenant that needs to be evicted due to staying beyond the notice period.

The difference is a tenant that is extending their tenancy past the lease term (for example a tenant with a 12 month lease that stays 12 months and 1 day, is liable for the 13th month's rent) vs. a tenant that receives a 30 day notice and stays 31 days is now subject to an unlawful detainer.

This means that while you cannot claim an additional month's rent, you can file a court action to get a judgment of possession and then forcibly evict the tenant (law enforcement will not forcibly evict a tenant without a court order).

This service offers a helpful "do it yourself" eviction flow sheet and forms to help landlords that wish to prosecute an eviction without hiring an attorney:, although if this is your first eviction, I really do recommend retaining an attorney to represent you.

The overall process looks like this:

  • "Eviction" is a word that is often misused and it leads to a lot of confusion, to help, here are the steps in terminating a tenancy:

    Terminating a tenancy-

    1) Notice: The first step in any termination is giving notice, the landlord can simply give notice that they no longer want the tenant to live there (this is usually 30 days, or 60 days, and it can be done for no reason whatsoever, there is no fault, and while the tenant must relocate, they are not being "evicted" and there is no blemish on their rental history), they can give a "notice to pay or quit" (usually 3 day or 5 day depending on the state, and the tenant has this amount of time to pay rent that they missed or move out), "notice to "cure or quit" (the tenant has breached the lease - broken something, noisy, etc. and must stop it or fix it within the notice period, again 3 days, 5 days, or 10 days), or a "notice to quit" (this is a 3 day or 5 day notice that says the tenant has messed up so badly they can do nothing but move out within the notice period - there is no chance to "cure" - this often happens when there is illegal activity on the property).

    2) Unlawful detainer/forcible entry and detainer (this is the legal proceeding where the landlord goes to court and sues the tenant to get possession - the tenant has an opportunity to appear and defend the action, common defenses include improper notice, breach of the lease (such as failure to maintain the property - "inhabitable conditions"). If the tenant answers the complaint, the parties can take "discovery" from one another and get additional information before a court trial before a judge.

    3) A judgment of possession/writ of eviction - if the landlord wins the trial, they get a judgment of possession and the court will issue a "writ of eviction."

    4) Forcible eviction - this happens when the Sheriff or Constable serves the writ of eviction - some jurisdictions give a courtesy notice the day or two before the eviction, others do not, but the end result is the sheriff overseeing the landlord's movers removing all of the tenant's possessions from the property and placing them on the curb, and the tenants are forcibly removed from the property. At that point, the landlord can change the locks and the tenant can no longer return (They have been "evicted").

Customer: replied 7 months ago.
1. Ok, that makes sense, however, since I had a lease in force, it was altered when both parties agree on; she received $1200 for leaving with the 30 day notice when I sold, since she did not leave in the 30 days but took the money, our agreement is void ? Therefore, the old lease kicks back in and I need to evict her because I do not have the new months of rent?2. Can I hold $1200 plus any cleaning fees since there was an addendum to our lease, she receives $1200 for leaving no later than 30 days. Since she violated our new agreement, she owes me $1200 since I gave it to her out of good faith. Total deposit only $1350. I know I will be short money and I will write off my loss.3. She told me I can keep her deposit if she stayed and did not get out in a text and verbal. Thanks.
Expert:  CalAttorney2 replied 7 months ago.

The subsequent contract you made with your tenant should be enforceable.

I would still recommend sending the tenant a follow up confirmation within the 30 day timeframe.

Customer: replied 7 months ago.
Ok, sorry I am a not understanding. If the subsequent contract is enforceable, I can I assume it is because she breached the new contract? If that is correct, then rent is currently due- a new month, if she does move out today, she would owe me a new months rent since she broke out agreement. There was a time and date specified for her to move out in exchange for $1200 and this would void the subsequent contract. She accepted the $1200 but did not fulfill her part of the contract. We are on day 31 right now. She owes for the last 30 days and this month because she broke agreement and went over into another month?
Expert:  CalAttorney2 replied 7 months ago.

No, I am only talking about the security deposit.

You are still working on a 30 day move out. I don't think you are going to be able to claim a holdover for the reasons identified in my original answer.

Customer: replied 7 months ago.
I am so sorry but still confused because I asked several questions. I probably was confusing with my question because this situation is a little complicated. She broke our agreement with by not moving out per request. Because of this, am I entitled to take the $1200 I reimbursed her for rent if the agreement would of been honored out of the deposit? She owes me for the last 30 days since she did not honor our agreement; she did not get out by 5pm. I understand not a holdover but a breach of contract. I gave her $1200 to be out by 5pm.
Expert:  CalAttorney2 replied 7 months ago.

If the tenant agreed to release her security deposit to you in exchange for staying, then you can hold it.

But be aware, courts are generally very protective of tenants and security deposits - so if you do choose to pursue this course of strategy, you are not guaranteed to prevail (no litigation is guaranteed, but this is even less so).

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