I did the best job I could.  I made mistakes and learned from them.  You could say that I learned how to be a landlord at the school of hard knocks!  Then it happened, a tenant stopped paying her rent.  I needed to do an eviction.  I found that there was even less information out there on how to do an eviction.  I didn’t know anyone that had done an eviction, there were zero resources on the internet for me in Minnesota, and even the court website was pretty bad.

After doing many evictions now, here are some thoughts that I have on where to get good eviction advice:

• Probably the most important item is to gain the knowledge before you need it.  In the military, they train the soldiers with live weapons and even do simulated combat training.  This is so that when they actually do enter combat, they have some experience to deal with what they encounter.  Doing evictions should be the same way.
  • Head down to eviction court, get a copy of the documents that you need to fill out for an eviction.  Talk to the workers at the counter, ask them about the process, how long it takes, what it costs, what mistakes are common.  Suck up info from them.
  • Find out when the next eviction court date is and attend.  These are typically open to the public so just sit in back and listen to what the judge asks, what the landlord says, and what the tenant does.
• When it it is time to do your first eviction, you may want to consider hiring an eviction lawyer.  This person will go through and do all the work for you, but ask them to include you in the process (you are paying them, so they should be willing to do this).  If your jurisdiction requires a tenant eviction letter, have the attorney give you a copy once it is sent.
• Whether you do the eviction yourself or hire a lawyer, make sure to save copies of everything so that you have something to refer to later when you have to do your next eviction.  Filling out that printable eviction notice, will always be confusing if you don’t have a reference to look back at.
• If possible, find another experienced landlord that you could take to lunch to pick his brain about doing an eviction.  He would probably be happy to share his stories and lessons learned.

Doing an eviction can be an intimidating process.  Finding places that you can get good eviction advice is an important first step in making it easier.

Regardless, now it is time to do an eviction.  Take some time to learn more about how the process works.  Here is an example of the steps involved in a Minnesota eviction:

1. Go online to the county website.  Download the free printable eviction notice.
2. Take the required paperwork down the to county courthouse, pay the fees, wait for the eviction notice to be prepared.
3. Once it is prepared, you need to have the documents served.  This must be done properly and by a neutral 3rd party.  I often use a legal courier company because they specialize in doing this for attorneys often.  They understand the process.
4. Now you wait up to 2 weeks for the court date.
5. At court you go before the judge and explain why you want this tenant evicted.  The tenant will most likely argue with  you and hopefully you can work out a compromise.  If the facts of the case are in dispute, the judge may order you both to a trial to decide who is correct.

While there is a lot of simple administrative busy work that goes into filing an eviction, it needs to be done properly.  Additionally, it takes time to go to the courthouse to file the eviction and then return for a court date.  All of these reasons may be a good idea for you to consider using an eviction lawyer.  These professionals do dozens of evictions each month.  They understand the process, legalities, and any loopholes that the tenant may use to slip out.

If you are too busy or too nervous about evicting your tenant, let some eviction lawyers handle it.  You simply turn over the information to the attorney and let them do everything.  You get a call after the court date telling you about the outcome.  You don’t have to waste your time running all over and you don’t need to have any confrontation or negotiations with your tenant.  What a great way to get this messy situation cleaned up!

Several people were looking for a printable eviction notice or a free printable eviction notice.  I am not really sure what they are looking for, but here are some thoughts about their line of thinking and the problems with it:

An eviction notice form is specific to the county or legal jurisdiction that you live in.  I would be very suspicious of a generic one that I found on the internet.  How do you know that it was created with all the legal requirements for your area?  Plus, these documents are usually free at the county courthouse or you can download them from their website.

Using an eviction notice that was not generated by your local jurisdiction could invalidate your claim in court.  A tenant or their attorney could simply show the judge that you did not follow the law when you filed the eviction.  Unfortunately, judges love procedural mistakes and I am sure they would throw out your case in a second.  This will be a huge frustration causing you to lose the money you spend filing the first eviction, not to mention the extra time it will take to get the tenant out of the property.

Alternatively, if you are simply looking for an eviction letter, which is essentially a warning document that you can send to the tenant to tell them what they need to fix or do, then I would be fine using something I found on the internet.   I would still compare it against the local legal requirements for your area if this is a required part of evictions in your area.

When using the eviction notice as a simple warning letter, you can actually find an eviction notice in Microsoft word.  You can go to www.office.microsoft.com, search for Word Templates for the version of Word that you are using.  Put Eviction into the search box and it should bring up a couple templates that you can use.  How easy is that?

Before downloading a printable eviction notice from the internet and assuming it just will work for your needs, check with your local courthouse to confirm it would be OK to use a non-legal binding form like this.

An eviction letter can mean different things in different areas.  In some areas, this is actual eviction notice letter, in others it is simply the official notice to a tenant that eviction is eminent if they do not remedy the lease violation.  Here are some thoughts about the eviction letter.

• Stop down at the local courthouse where the eviction is filed to understand all the requirements of the eviction process.  If you have properties in different counties or different states, the process may be different.  Make sure you understand each jurisdiction.  You can find printable eviction notices at your local courthouse website.
• Your location may require a Notice to Quit which is different than an eviction letter.  This is typically used where the eviction letter is the formal process of eviction, then the Notice to Quit is the warning.
• Be sure you understand the eviction process time line required.  Some places allow you to file for an eviction immediately, others make you wait 30 days.
• Have an action plan for both the property and tenant before you write and send the eviction letter.  Are you OK if the tenant simply resolves the lease violation or do you really want to push them out of property?  If the tenant calls you when they receive the notice of eviction, what are you prepared to tell them?  Remember that they forced you into this situation and you should not back down or take more excuses.  Stick to your guns!
• Write the letter in a professional tone.  Do not include any hearsay or rumors.  Stick to the simple facts that you could prove in court (you may have to).  Refer to the lease agreement when possible to prove your argument.  Explain what the tenant needs to do to remedy the situation.  Also include what and when your next action will be, which may include filing the eviction.
• Have the letter sent via certified mail or have it served by a process server so that you have proof that the tenant has received it.  If you hand deliver it yourself, have a witness with you and have that witness sign an affidavit stating that they saw you hand the letter to the tenant.  Document the date and time.
• If you are not comfortable with the eviction process, you may want to consider finding eviction lawyers that can handle your case and tenant.

Using a tenant eviction letter is a less expensive, quicker, and often very affective way to get compliance out of your tenant.

I have never done anything like an emergency eviction, but I have watched a couple in court.  Typically these type of evictions are reserved for significant problems such as criminal activity or unhealthy living conditions.  Let’s explore some examples of each:

Criminal Activity-Unfortunately, you smelling pot smoking coming from your tenant’s apartment is not enough to ask for an emergency eviction.  In fact, I would never try evicting tenants based solely upon my observation of criminal activity.  You should have the police document and/or arrest the person(s) involved so that you have a very credible, neutral 3rd party report of what happened.  I have seen the judge grant an emergency eviction when there is documented evidence of drug dealing or prostitution going on at the apartment.  Other criminal activity include anything related to violence.  Typically this criminal activity does not need to be committed by the tenant, but just by anyone associated with the tenant.

Unhealthy Living Conditions-Even with some of the worst sanitary conditions I have seen, rarely does a judge issue an emergency eviction.  They often feel that if the issue has been going on for this much time, another 2 weeks or so for the eviction will not hurt anything.  One exception is when the utilities are turned off because of the tenant’s failure to pay the bill.  If the heat is off in the winter (which it is rare for the utility to turn it off in winter) you could damage the property and the judge may let you regain possession quicker to prevent problems.

While you can ask for an emergency eviction or expedited hearing, I find it rarely given except in rare situations.  I recommend that you consult an evictions attorney when you have one like this.

So how do you find a good eviction attorney?  Here are some suggestions:

• Go down to the courthouse on a day that other eviction proceedings are happening and see if there are any eviction attorneys working on that day.  They will typically be wearing the usual attorney attire which is a business suit (which will look out of place amongst the landlords and tenants in the room).  Do not expect to discuss your case with them as they are currently working for (and being paid by the hour for) someone else.  Simply get their card and then ask how many evictions they do per month.  Reconnect with them on the phone at a later date.
• Call a larger, local property manager in your area.  See what eviction attorney they could recommend.  You are unlikely a competitor so they will probably be willing to help you.
• Contact a local Realtor that sells investment properties.  Do they have a recommendation of a good eviction lawyer?
• Google evictions attorney [insert your state name here] to find some.

Once you find some attorneys to speak to, put together a list of questions to ask them.  Here are some suggestions:

• Do you work on an hourly basis or a flat fee?  Since the eviction process is actually pretty routine, your attorney should do the eviction for a flat fee.  This will save you money.
• Will you be the person doing all the work or do you have paralegals that file the paperwork?  Much of the eviction process is simple administrative work that can be handled by a less expensive administrative person or paralegal.
• How many evictions do you process in a month?
• How quickly can you get the eviction notice form filed and get into court and subsequently get these tenants out of my property?
• Do I need to appear in court or will you handle the entire process?
• Are most of your clients large property managers or do you also work with small landlords that own 1-2 rental properties?

It is very important to be a on a first name basis with a good eviction attorney.  This will be an invaluable relationship that you will use and come to rely on over the years of owning rental properties.

The process server can really be anyone, but that person must not be a party to the legal proceedings.  In other words, you can’t have a co-owner in the property or property manager serve the eviction notice.  Most landlords will simply have a service do it.  Typically this will cost about $50-$100.  Then it is done correctly, in a timely manner, and is easy to defend in court if the tenant argues they did not receive the notice (as the service will notarize their work).  Plus these are the same services that an eviction attorney would use so their name will probably be familiar to the judge in the case.  In some states, the Sheriff is the one that will serve the notice.  Hard to argue that they did it correctly!

Who May Sign the Eviction Complaint?

• Property owner or designated property manager
• Attorney for property owner
  • An eviction attorney may be required if the property owner is a corporation
• Person entitled to possession of the property such as a bank or new owner
• Agent designated by property owner (Agent must file a Power of Authority in Eviction Action with the court at the time of filing the Complaint), typically used by eviction services.

Filling out the Eviction Forms (Complaint):

• A Complaint must be filed with the court stating:
  • Full name and date of birth of the tenant(s), unless not known
    • you must evict all residents by naming each adult resident whether or not named in the lease (use “John Doe” or “Jane Doe” if necessary)
    • you can not evict only the “bad” tenant, all parties on the lease must be on the eviction complaint
  • Full address (or other description if no address) of the premises of which the landlord seeks to recover
  • Facts which authorize recovery of possession, such as lease violations or non-payment of rent
  • Request for recovery (this is the legal request to get the property back)
• The landlord must show compliance with Minn. Stat. § 504B.181 by:
  • Landlord must (1) disclose in writing to the tenant and (2) post in a conspicuous place on the premises the name and address of:
    • The person authorized to manage the premises, and
    • Landlord or agent authorized to accept service of process and receive and give receipt for notices and demands, OR
  • Tenant must have been aware of this information at least 30 days prior to filing the action (typically given to tenant on lease documents).
• The landlord must pay the court filing fee.

Summons

• The Summons is a written eviction issued by the court informing the defendant/tenant that a legal action has been filed and will be heard on a specific day.
• The Summons must be served at least 7 days before the court date, and proof of service must be filed with the court within the time required.

Serving the Summons and Complaint

• Without proper service upon the tenant, the court may throw out the case and the landlord may have to start over and pay all of the fees again.  I recommend you use a process server, which is a neutral third party, typically a legal courier company.
• Personal service
  • Must be served by a person that is not a party to the eviction (Not Named)
  • Can not be served on a Sunday or legal holiday
• Substitute Service
  • If the tenant will not answer the door or can not be found, service may be made at the property to someone who lives there, who is of suitable age (typically 16+).
• If the personal or substitute service was successful, the process server will file a  notarized document with the court called an Affidavit of Service.  This must be done within the time line specified in the complaint.
• There are other ways to serve the complain and summons such as mail and post.
  • If the personal or substitute service was attempted on two different days with one of those days being after 6pm, but before 10pm, the summons and complaint can be posted to the door and mailed to the tenant at the last known address.  This process requires additional notarized Affidavit’s to be filed at the court to be considered done properly.

At the Eviction Hearing

• It is the landlords responsibility (burden) to show that he is entitled to regain possession of the premises.  This hearing is NOT to recover any past due rent.  Proof must be shown by witnesses, statements, photographs or payment records.  Typically non-payment of rent can be validated by a monthly statement that is mailed to the tenant.
• The tenant must be able to defend their actions in court.  A court appointed mediator may help the parties reach an agreement.  Some tenants may get free legal help from legal aid or other parties.

Eviction Notices

• Most people think of the complaint as the eviction notice, but actually, if the landlord wins the case, he may be able to request a Writ of Recovery and Order to Vacate from the court.  There is an additional cost for this.  The county sheriff will then serve the eviction notice on the tenant, giving them 24 hours to vacate the premises or be removed by the sheriff.  Typically, if the tenant has children, the court will allow the tenant up to 7 days to find new housing.
• If the tenant refuses to vacate the property within 24 hours, the landlord must schedule a move-out date with the sheriff.  At that time, the sheriff will remove the tenant, if necessary, and the landlord legally can lock the tenant out of their former unit, under penalty of trespassing.  The landlord may store the tenant’s personal property on the premises or use a licensed and bonded moving company to remove and store at another location.

Evicting your tenant is not difficult, but it requires that you follow all the legal rules to the letter, otherwise you may be required to start over.

In such cases, this is what Minnesota law says about terminating tenancy at will:

504B.135 TERMINATING TENANCY AT WILL.

(a) A tenancy at will may be terminated by either party by giving notice in writing. The time of the notice must be at least as long as the interval between the time rent is due or three months, whichever is less.

(b) If a tenant neglects or refuses to pay rent due on a tenancy at will, the landlord may terminate the tenancy by giving the tenant 14 days notice to quit in writing.

Notice must be given in writing that the tenancy will be terminated on a certain date, and should state that if the tenant does not vacate by that date, an eviction action will be pursued. The notice should be drafted with a termination date pursuant to the applicable time period from section (a) or (b) of Minn. Stat. 504B.135 – the interval between time rent is due (typically 1 month or up to three months), or if termination is for non payment of rent, 14 days.

Here is some sample language for written notice terminating tenancy at will:

• The purpose of this written notice is to terminate your tenancy at will.  Please be advised that your tenancy will be terminated on ___________  ____, 2010, [14] [30] [60] [90] days from the date of this notice, pursuant to Minn. Stat. 504B.135.  If you do not vacate by this date, an eviction action will be pursued in ___________ County Housing Court to have you removed from the property.

I suggest the written notice be sent to the tenant via certified mail, return receipt requested, as well as a second copy by regular mail, mailed at the same time.  In case the certified mail is returned for refusal to sign or failure to pick-up, you’ve also sent the written notice via regular mail to the tenant’s address – save the return receipt, if returned, or the refused certified letter, which will be returned to you – for the court hearing.

After the notice to quit time period has expired, and if the tenant still does not vacate, then an eviction action would be required to remove the tenant.  The eviction process hearings are typically set 14 days from date of filing the Eviction Action Complaint.  The Eviction Action Complaint must be served on the tenant at least seven (7) days prior to the hearing via personal service with affidavit under the Minnesota Rules of Civil Procedure (by a third party not a party to the action), and if personal service cannot be made, the process server can complete service by posting on the property after two failed attempts, and then completing an Affidavit of Not Found and Posting.  See Minn. Stat. 504B.331.

Matt Engel

Aase, Engel & Kirscher, PLLC

2499 Rice Street, Suite 236

Roseville, MN 55113

T: 651-209-6884

F: 651-209-8088

C: 612-385-0554

www.aeklawfirm.com

Eviction Action / Unlawful Detainer

• $195 eviction attorney fee
• Review lease
• Prepare Eviction Action Complaint
• Coordinate eviction action complaint filing and service of process on tenant or posting
• Attend hearing in housing court
• Court filing fee and Sheriff’s fees ARE NOT included and must be paid by property owner

Business entity formation

• $495 legal fee
• 1 hour consultation to discuss business needs
• Legal analysis for choice of best entity (S Corp or LLC)
• Preparation of Company Record Book
  • Articles of Incorporation / Organization
  • Organizational Minutes
  • Bylaws
  • Share Certificate Ledger / Membership Units Ledger
  • Shareholder Ledger / Capital Contributions Ledger

Matt can be reached at:

Aase, Engel & Kirscher, PLLC
2499 Rice Street, Suite 236
Roseville, MN 55113
T: 651-209-6884
F: 651-209-8088
C: 612-385-0554

Be sure to tell him that I told you to call!