California Multi-Family Residential Real Estate Building Signage

California multi-family rental home owners and property managers need to be educated about appropriate ‘Signage’ for their properties.  The following is a concise list of typical signage at multi-family buildings, rental properties, and neighborhoods.

Responsible Person (At Property) Signage

For 4-15 unit residential properties, if the home owner does not live on-site, a sign must be posted showing the name and address of the property "responsible person". California Code of Regulations Title 25, Section 42 reads in pertinent part, a supervisor, a manager, a janitor, a housekeeper, or other responsible individual shall live upon the premises and shall have charge of every apartment building in which there are 16 or more apartment houses, and of every hotel in which there are 12 or even more visitor rooms, in the event that the owner of any such apartment house does not live on the premises.

Simply one caretaker or manager would be required for all structures under one possession and on one adjoining tract. If the property owner does not reside upon the premises where there are greater than four units but less than 16 units, a notice specifying the manager’s name and address, or the name and address of his agent accountable of the apartment building(s), should be posted in a visible and conspicuous location on the premises.

Parking Regulations, Parking Restriction Signs

Parking is usually a critical component to a multi-family residential building, especially in crowded neighborhoods, or downtown areas.  California Motor vehicle Code § 22658 authorizes removal of unauthorized or abandoned cars from private parcels if certain conditions exists and specific procedures are followed. One scenario permitting vehicle extraction states that posted signage be installed, in a conspicuous and visible location, at each entry to the residential property.  The sign must be 17” by 22” and its lettering much be in 1” tall letters. It must state that public parking is prohibited and/or restricted and that cars will be towed/hauled at the car owner’s expense.  The sign must state that a citation may be issued. It must also show the telephone number of the local police department and any towing company that will be towing the vehicles.

To learn more about towing cars from personal/private property parking lots, look to California Vehicle Code § 22658 which can be found at http://www.dmv.ca.gov/pubs/vctop/d11/vc22658_2.htm.

Health Facility Signs and Diving/Swimming Pool Signs

If the multi-family residential property has a pool or spa, the California state regulation calls for the following:

-         Where No Lifeguard Service is Supplied:

-         At least one (1) required sign posted that reads:

"WARNING -- NO LIFEGUARD ON DUTY", in clearly clear letters a minimum of 4 inches higher. (Title 22, Cal. Administrative Code, § 65539(c)).

-         At least one (1) required sign posted that reads:

"Children Under the Age of 14 Should Not Use Pool Without and Adult in Attendance" (Title 22, Cal. Administrative Code, § 65539(c)).

-         A property manager must post diagrammatic illustrations of artificial respiration where plainly apparent from the nearby pool deck. (Title 22, Cal. Administrative Code, § 65539(d)).

-         A property manager must post the phone number of the nearby ambulance service, fire, police, and sheriff’s department, in addition to instructions that, if needed, artificial respiration should be started immediately and continued until a physician shows up or mechanical resuscitators are applied. (Title 22, Cal. Administrative Code, § 65539(d)).

-         A property manager must post a sign near the swimming pool entrance displaying the maximum number of permitted occupants. The capacity for every swimming pool is one bather for every single twenty square feet of water surface area. The signage needs to have plainly clear letters at the very least four inches high. (Title 22, Cal. Administrative Code, §§ 3119B.1. 3118. B. 1.2).

-         A property manager must post a sign by the spa indicating the maximum spa occupants. The capacity for every swimming pool is one bather for every single ten square feet of water surface area. (Title 22, Cal. Administrative Code, § 3119B.1.1).

-         Where diving is prohibited, a property manager must post signage with clear letters of a minimum of four inches high that states "NO DIVING ALLOWED." (Title 22, Cal. Administrative Code, § 3119B.2).

-         If gas chlorine is used for swimming pool disinfection, a property manager must post signage conspicuously on the exterior side of the entry door to the chlorine area or on the nearby wall surface location.  The sign must present the proper hazard recognition for gas chlorine, and letters a minimum of 4 inches higher stating "DANGER: GASEOUS OXIDIZER-- CHLORINE." (Title 22, Cal. Administrative Code, § 3119B.3).

-         If the swimming pool does not have light fixtures complying with Part 2-9019 of the code, a property manager must post signage with clearly legible letters a minimum of 4 inches high should be posted in an area near each entryway to the swimming pool location that states: "NO USE OF SWIMMING POOL ALLOWED AFTER DARK." (Title 22, Cal. Administrative Code, § 3119B.4).

-         For spa pools, post a preventative/precautionary sign with clearly legible letters a minimum of 4 inches high near the entrance to a swimming pool area, having the following language:

"CAUTION.

1. Elderly persons, pregnant women, infants, and those with health conditions requiring medical care should consult with a medical doctor prior to entering the spa.

2. Unsupervised use by kids under the age of 14 is not allowed.

3. Hot water immersion while under the influence of alcohol, narcotics, drugs, medicines, or narcotics could cause major and serious consequences and is not advised.

4. Do not use spa alone.

5. Long direct exposure may cause nausea, lightheadedness, or fainting." (Title 22, Cal. Administrative Code, § 3119B.5.).

Approved signs should be preserved in a legible manner. (Title 22, Cal. Administrative Code, § 3119B.6).

More signage could be required under neighborhood regulations or other appropriate state laws.

What the Law Requires Property Managers to Know About Lead-Based Paint

Lead, (Pb on the Periodic Table from Chemistry 1A), has been an integral part of human existence for thousands of years.  It has been very useful and instrumental in the development of plumbing, waste disposal, and water diversion systems from early civilizations.  Most importantly lead-based paint was used prolifically up until 1978 to paint the homes, dwellings, and buildings of the United States.  It is estimated that 38 million homes in our country have some form of lead-based paint in the interior or exterior.  Although lead has helped advance our human cause it has also presented hazardous health side effects which required laws restricting its use and requiring disclosures.  Property managers, landlords, and owners who rent for a fee must be aware of the requirements set forth by State and Federal Law before renting, leasing or even selling a property built prior to 1978.

Lead is Found All over the World

Metallic in form lead is found all over the world, in each continent – usually mined as an ore, copper, silver, zinc or other metal.  Archaeologists believe that lead has been used since around 6500 B.C. primarily because of its low melting point and ease of manipulation.  Originally used to make tools, cookware, and plumbing systems lead found its way into cosmetics, hair coloring, glazed ceramics, toys, game pieces, bullets, gasolines, and interior and exterior paints to name a few products.  Lead became so pervasive in paints that it is estimated that over 38 million homes built prior to 1978 have lead in the paint somewhere in the homes.

Why was Lead Eliminated from Paint?

The most common source of lead poisoning was determined to be dust from friction of painted surfaces which was inhaled.  Lead paint becomes a hazard when: 1) it starts to deteriorate including cracking, peeling, or chipping; 2) if it is in a high friction area it can turn to dust, such as a window sill or door frame; 3) when it is located in areas that children can access like railings, stairs, door frames, window sills; or 4) where areas containing old paint are being renovated. 

After research into lead poisoning was determined to be directly related to lead in residential house paint a directive to enact safety requirements led to some new laws promulgated by both State and Federal governments.  In 1992, The Residential Lead-Based Paint Hazard Act (“The Act”) became law which was designed to help protect individuals, mostly children, from the hazards of lead in paint, dust and soil.  The Act allowed the Department of Housing and Urban Development along with the Environmental Protection Agency to create specific requirements for paint with lead in housing built prior to 1978.  Under The Act property managers, landlords, and sellers are required to: 1) provide lead paint disclosure pamphlets to prospective renters, lessees, or buyers; 2) disclose knowledge of lead paint including location of any known lead paint hazards; 3) provide records of paint hazards or locations; 4) give buyers ten (10) days to inspect a home with Pb-paint; 5) attach a Pb-paint warning to the lease or contract which discloses warning of possible hazards; and 6) keep records for three (3) years of this signed document.

The Fine for Owner’s Violations is Significant

In the event a property manager, landlord, or owner fails to follow the law, fails to disclose the known existence of Pb-paint, or fails to comply with any aspect of the law a fine of $10,000 can be imposed on the owner of the property plus paying damages to the tenant, lessee, renter, or buyer including possible loss of attorneys’ fees.  The best practice is to make sure the age of construction of the house, dwelling or unit, fully disclose all information about the unit, and provide the required disclosures.

How can this Problem be Eliminated?

There are basically two choices for property managers, landlords, or owners who are aware of paint laced with lead.  First, a temporary repair can be utilized by painting over the older painted areas.  Second, a permanent but more expensive fix involved complete abatement or removal of the paint.

Property Managers, Landlords, and Owners must be Educated about Lead Paint

Without proper education a property owner, landlord or owner who rents or sells a property prior to 1978 might be setting themselves up for some trouble.  It is a must that these individuals understand the law, the required disclosures, and the minimum efforts necessary.  Owners must also be aware that the individuals that they hire to manage their properties should be educated, professional, and perform all their statutory duties or else consequences may result.

What California Law Requires Property Managers to Know About Smoke Detectors and Smoke Alarms

If you manage properties or rental units for a fee, or you are an individual who rents properties or rental units to people/tenants for a rental fee or leasing fee you should pay attention to what the law requires when it comes to smoke detectors or smoke alarms.  As a landlord you are responsible to know the law; ignorance is no defense to a wrongful death lawsuit or serious fire causing major property damage.  Smoke alarms and smoke detectors are critical residential components which must be handled with care and diligence as they are life-saving and property-saving devices which must not be taken lightly.  The undertaking of managing properties is wrought with legal pitfalls and unknown obstacles, however understanding the law is paramount to being a fiduciary for your client, or being on the right side of the law if something goes wrong.  A new 2014 law in California implements some standards which all property managers and property owners who rent to individuals must be aware of and abide by.

New Law for Life-Saving and Property-Saving Devices

As of January 1, 2014 all smoke detectors installed in residential units in California must be on the State Fire Marshall list of approved  and listed devices and are required to; 1) display date of manufacture on device; 2) provide place on device where date of installation can be written; 3) incorporate a hush button feature; 4) incorporate an end-of-life feature that provides notice that device requires replacement; and 5) maintains a non-replaceable, non-removable battery capable of powering smoke alarm no less than ten (10) years – if the device is battery operated.

New Obligations for Rental Property Managers and Rental Owners

Prior existing law required multi-family rental property owners to install, test, and maintain smoke detectors, while single-family unit owners were under no obligation to do so.  As of January 1, 2014 all residential unit owners who rent to tenants for a fee are required to install, test, and maintain listed and approved smoke detectors.  For apartment buildings with two or more units landlords are even required to maintain smoke detectors in vacant units.

Owners, property managers and landlords are allowed access to tenant units to inspect, test, repair and maintain smoke detectors provided they give reasonable written notice to the tenants.  Reasonable notice is considered to be written notice within 24-hours, Monday through Friday, or whatever can be arranged with the tenant as not to disrupt the tenant’s quiet use and enjoyment.  Importantly for property managers and sole property owners who rent a new tenancy requires an inspection and confirmation of an operable, code complying device, in all of the required locations within a rental unit.

Penalties for Non-Compliance Can be Expensive

When building permits for repairs or remodeling are obtained a final inspection of the construction will not be approved until code complying smoke detectors are installed and tested by the building inspector in all of the required locations within a rental unit.  If this inspection fails a delay in obtaining a final building permit approval could be a few days (depending on the building department scheduling) which could result in rental income losses.

Importantly property managers, landlords or owners who fail to comply with the new law can be fined $200 for the first and each subsequent offense.

Compliance with the Law is the Best Practice

The new law creates an opportunity for property managers, landlords, or owners to inspect their units for compliance and maintenance during a period of time when it was not otherwise required.  The life-saving device inspection should be done periodically as this is an important component of the rental unit habitability, rental unit life-safety and a prudent business practice.  An inspection of carbon monoxide detectors should be performed at the same time.

Attorneys’ Fees, Property Managers, Landlords and Tenants

The American rule for attorneys’ fees is that each party bears its own attorneys’ fees and costs unless otherwise specified by contract or statute.  When a contract or statute specifies that the prevailing party is entitled to their reasonable attorneys’ fees and costs, assuming the matter is litigated to conclusion by a court or a jury, the prevailing party can then make a motion for their attorneys’ fees and costs (Motion for Attorneys’ Fees).  The motion is then taxed (Motion to Tax Costs), or opposed, by the opposing party by paperwork, a declaration, and exhibits.  The moving (winning or prevailing) party will then provide a reply brief to the judge addressing the issues raised in the opposition papers (Reply to Motion to Tax Costs).  The judge who presided over the matter will rule on the Motion for Attorneys’ Fees and grant an award of fees and costs.  This process is rather lengthy and costly; the fees of which to produce the motion paperwork are also calculated and included for the prevailing party.  How this applies in a landlord tenant situation is simple; a lease or rental agreement between and landlord and a tenant typically has a clause which allows recovery of attorneys’ fees for the prevailing party if a dispute arises under the lease or rental agreement.

Typical Contract Attorneys’ Fees Clause

After careful review landlords, property managers, and owners should have attorneys’ fees clauses in their leases or rental agreements because it is usually the tenant, lessee, or renter who is in breach of the terms of their agreements, not the landlords, property managers, or owners.  Thus, in order to have leverage and a motivating hammer over tenants, lessees and renters these clauses are important to enforce bad tenant behavior.  The below italicized language is a typical attorneys’ fees clause:

In any legal action, lawsuit, or arbitration brought by either party to enforce the terms of this lease/rental agreement which arises out of the property, whether based in tort or contract, the prevailing party is entitled to their reasonable attorneys’ fees and costs upon motion in front of a competent court, judge or arbitrator.

Why Attorneys’ Fees Clauses Are Important

While Landlords, property managers, and owners are more likely to prevail and win an award against a defiant tenant the awards are not always collectible.  However, an award against a landlord, property manager or owner is more likely than not collectible because they have more resources and assets.  Because of this economic imbalance some landlords, property managers and owners choose not to have these clauses as it is motivation to the tenant to sue the more substantial rival.  The economic reality of these clauses typically weighs against a tenant, but in those instances where the landlord has breached it can be a powerful weapon for the tenant.

Attorneys’ Fees Clauses are Reciprocal and Apply to Both Parties to a Contract

Some inexperienced landlords have even drafted one-way attorneys’ fees clauses which attempt to only allow for a landlord recovery.  In California these type clauses are actually reciprocal and work against and for both parties to a lease or contract.  California Civil Code Section 1717 makes any one-sided attorneys’ fees clause reciprocal.

Know Your Contract Clauses and What They Mean

It is important to know and understand what clauses are in your property management agreement, your leases, and your vendor contracts.  Attorneys’ fees clauses are extremely important components of contracts and they are the first clauses plaintiff’s attorneys look for when evaluating a case against a landlord, owner, or property manager.  If you drafted your agreements on your own you should have an experienced real estate attorney review them for clarity, legality, and items which may affect how you do business.  The amount of time and money spent for this little exercise is sometimes worth its weight in gold.

Property Managers Owe Fiduciary Duties to Their Clients at Minimum

“Fiduciary” is basically defined by Black’s Law Dictionary as a term derived from Roman law which means, as a noun, a person or legal entity, holding the character of a trustee, with respect to the trust and confidence involved as scrupulous good-faith and candor towards another’s affairs.  A fiduciary also has duties which are described as involving good-faith, trust, special confidence, and candor toward another’s interests.  Typical fiduciary duties are imposed on and include such relationships as executor, administrator, trustee, real estate agents, attorneys, and, of course, property managers.  A person or company who manages money or property, i.e., the property manager, for other people must exercise a standard of care in that the interests of the money or property owners are placed above and beyond those of the property manager.  In some states, like California for example, a property manager is statutorily defined as an individual or entity which has the same duties as a trustee, i.e., a fiduciary.

The way I always explain it to clients, using my hands to demonstrate, is that my interests end at the top of my head (one hand at the crown of my head), but the client’s interest rise above and beyond my head and take precedent over my own (holding both of my hands above my head in a clasped position).  Most people understand the gesture and comprehend that as a property manager and a lawyer my interests are much lower than those of the clients in our relationship.

Common Fiduciary Duties Owed by Property Managers

Since a property manager is a fiduciary they must act with the highest good-faith and fair dealing with respect to the owner’s asset, disclose all material information that may affect the owners decision-making with respect to that asset, and can’t in any way, shape or form act adversely to the owner’s interests.  This may sound easy, but there are situations that arise that tempt even the best property managers to sometimes not act in their client’s best interests to suit their own self-interested convenience.  Unfortunate as that may sound it happens regularly.

The following is a short list of some common sense duties, rights, and wrongs when a fiduciary relationship exists between a property manager and an owner.

A property manager should have a written agreement with his clients and may even be legally entitled to profit from services for which they provide to the owner, however, a property manager may not secretly profit from this relationship.  For example, a manager may charge an eight percent markup on materials and services provided by vendors to the owner’s property.  This is legal and acceptable provided that the agreement between the parties is in concert with the markup.  If this markup was not in the agreement then the law requires a property manager to disgorge or relinquish any and all secret profits derived from the relationship.  There are so many possible examples of this, but a common one is a property manager making a percentage profit on work and services provided to their clients but not disclosed; like a new roof, bathroom remodel, repairs to interior walls, etc.

A property manager is required to disclose any and all rental offers received along with documentation of those offers such that the property owner is well informed about all potential tenants.  It is easy for a property manage to fail to provide names of potential tenants that don’t necessarily qualify or are poor credit risks as this would involve more work for the manager.

A property manager is statutorily required to act for the sole benefit of the asset owner in matters that evolve from the relationship, whether or not those matters are seemingly insignificant or they are significantly material.

Information about a tenant whom falls behind on their rent must be immediately communicated to the asset owner.  If your management company is using a software system that allows an “Owner Portal” then this information is readily available to see and anytime one has access to the internet.

If a manager receives information that a tenant has caused damage to a property the owner should be notified as soon as feasibly possible.  It is easy for the manager to not disclose this information for fear of confronting the disgruntled owner or just not wanting to deal with the conflict associated with that situation.

Trust Account Duties

A trust account which holds deposits and rent monies for the benefit of the asset owner is a common ground for fiduciary duty breaches.  The law precludes a property manager from commingling of the client trust funds with broker or property manager owned funds.

Additionally, it is a breach of fiduciary duty to make mortgage payments on broker owned properties from a trust account even if the broker quickly reimburses the account for the payments.  The statutory prohibition against conducting personal business from trust accounts is strictly enforced.

Surprisingly another common example of commingling of funds occurs when the property management fee is not timely withdrawn from the trust account.  Sometimes a delay of twenty-five (25) days could be considered commingling.

Trust funds must also be deposited with expediency.  Some states require that deposits must be deposited by no later than the next business day.

Commingling of Trust Funds is a Serious Offense

Commingling of trust and broker funds is such a serious offense it can be grounds for revocation or suspension of a broker’s license in most states.  Thus, this sole issue must be of paramount importance to a property manager and property management company.

Conclusion

Managers owe fiduciary duties to their clients – this is the minimum standard owed.  There are many ways to breach these duties which form the basis for the relationship between the manager and the client.  It is important to hire a property manager who understands and abides by the statutory framework, understands fully what a fiduciary duty entails, and can both clearly communicate those duties and at the same time live up to them.  It is important for owners to make sure they hire property managers who abide by these minimum standards.

How Property Managers Can Legally Prohibit Smoking in Rental Properties

An owner of rental property including single-family residences and multi-unit apartment buildings can legally prohibit smoking in and around their properties just like they can prohibit pets, too many guests, or too much noise.  In addition to the obvious health related reasons and rationale for eliminating smoking in rental units by reducing or preventing exposure to secondhand smoke, a no-smoking policy can also reduce risks of fire which may lead to reduced insurance premiums for the properties.  Another benefit is that there may be a lower number of turnovers and a lower maintenance load on the building by eliminating smoking on and around the property.  The bottom line is that a property manager, landlord, or property owner all have the legal right to prohibit smoking in and around a rental property and should for all of the properties under ownership or management.

Property Managers Can Prohibit Smoking in Common Areas

Common areas like walkways, hallways, lobby areas, swimming pool areas, spa rooms, and other gathering rooms are all places where a property manager can also prohibit smoking.  A prohibition on smoking in common areas is remarkably similar to other common area rules like restricted hours for pool or spa use, hours for the laundry room, noise restrictions, or a requirement that children must be accompanied by a parent at the common area pool.

Property Managers Can Prohibit Smoking in Individual Units

Similar to restrictions on pets, numbers of guests, excessive noise and the like a property manager or property management company can prohibit smoking in a rental unit.  The restriction would be drafted right into the lease or rental agreement.  A violation of the restriction would be treated just like a non-paying tenant complete with a three-day notice and an eviction proceeding if the tenant was defiant and continued to smoke in violation of the restriction.

If a property manager took over a unit where smoking were permitted and a policy change were desired the property manager can amend the lease or rental agreement to reflect the new policy.  If the tenant were on a 12-month lease then the amendment would take effect at the end of that term.  If the tenant were on a month-to-month agreement then the amendment would take effect after 30 days had passed from the date of notification to the tenant.  In either instance the property manager has the right to amend the lease and restrict the tenant from smoking.

Balconies and Patios Can Also be Off Limits to Smoking

In addition to inside unit restrictions a property manager may restrict smoking on balconies, patios, and any surrounding areas adjacent to a rental unit.  A clear and concise statement in the lease or rental agreement that specifically details a strict no-smoking policy for the rental unit and describes the particular areas where smoking is prohibited must be inserted into the lease or rental agreement.

A Smoke-Free Environment is Legal and Not Discriminatory

It is not a violation of Fair Housing laws to prohibit smoking inside of or around rental units.  In fact, property managers should promote the fact that their properties are smoke-free environments for several reasons.  First, a smoke-free environment will help promote healthy living.  Second, a smoking restriction will help attract potential tenants who are looking to be in a smoke-free environment.  Third, a non-smoking policy will help reduce risks fire and will reduce maintenance costs over time.

Conclusion

Californians have existing protections from exposure to smoke, second-hand smoke and smoking in general in places of employment, restaurants, and recreational facilities, however, there are no state laws restricting smoking at rental units.  Even though the state doesn’t restrict folks from smoking in their rental units property managers can and should require these restrictions.  All parties benefit by a non-smoking policy, even those who smoke as they will find themselves less likely to smoke the more difficult it becomes.

Property Managers, Commercial Tenants and Evictions

Your commercial tenant failed to pay rent.  You have heard that things are not going very well for them, but now it is apparent.  As a property manager your duty and obligation is to resolve the issue as quickly as possible.  When the tenant failed to pay by the due date they have effectively breached the lease and you are entitled to evict the tenant from the property.  An eviction lawsuit commonly called an Unlawful Detainer action is a fairly straightforward legal process.  The important thing for property managers to know is that the steps involved in this process are critical and must be followed to the letter of the law.  A real estate attorney representing both parties in the action is common.  If your property manager has followed the law, given proper notice, and has a detailed file of all of the correspondence between the tenant and their company the unlawful detainer action should go fairly smoothly and the landlord or owner should prevail.

The First Step Is To Resolve Rent Payment Issue If Possible

If at all possible the property manager should make every effort to get the tenant to make the rent payments and bring their lease current.  If this involves waiting a few extra days for payment maybe this would be the best course of action instead of filing a lawsuit.  Your individual company policies and best practices will dictate this action, but it would be better for all parties to resolve before litigation.

Three-Day Notice Drafted

If a payment is not forthcoming then a ‘three-day notice to pay or quit’ must be prepared and properly served on the tenant.  This notice must be in a specific legal format.  A commercial owner, landlord or property manager can choose between different types of 3-day notices; 1) specifies the precise amount of rent owed; or 2) estimates the amount of rent owed – usually when a tenant is paying a percentage rent.

If the lease requires the tenant to pay rent and other separate amounts for triple net or CAM charges, the property manager should get the proper advice on whether or not two separate and distinct notices are required to be served.  For example, if the property manager or landlord accepts an overpayment of the rent because they have miscalculated and the tenant overpaid estimated rents and CAM charges this may lead to a tenant victory in the unlawful detainer action.  This would also possibly give the tenant the right to attorneys’ fees.  It is critical to be correct in this step.

The Three-Day Notice Must Be Properly and Legally Served

The tenant is deemed served when they are personally served with the three-day notice, or a responsible person at the place of business is personally served on the premises.  In the event no one is available the landlord or property manager can attach the notice to the front entry door of the business premises while simultaneously sending a copy of the three-day notice by certified mail return receipt requested.  The landlord or property manager must then prepare a ‘proof of service’ in the proper format which states in pertinent part that the ‘three-day notice’ was served on the tenant, or describe the method of service.

The Property Manager or Landlord Has a Three Day Waiting Period Required for Service to be Effective

After properly serving the three-day notice a three day waiting period begins on the next business day.  If the third day falls on a weekend or holiday the three day waiting period is extended to the next business day.

If the tenant decides to pay all rent due at this point or corrects any outstanding violation of the lease terms then the eviction process ceases.  If the tenant makes partial payment the landlord or property manager can accept partial payment but must notify the tenant that they are not waiving their rights to proceed with an eviction.

In the event that the tenant has violated the lease by way of some criminal act or conduct then the eviction process continues.

At the end of the three day waiting period the landlord or property manager may go forward with filing and serving a complaint and summons.

Summons and Complaint are Prepared and Served

In the event that the tenant has failed to cure their outstanding rent violation, or failed to cure any other violation that they have been property notified of, then the landlord or property manager may proceed with filing and serving the summons and complaint to the tenant.  A third party not involved with the action, typically a registered process server can be hired for a fee to serve the papers on the tenant.  The summons, complaint and proof of service must then be filed with the court clerk’s office together with a copy of the lease, and then property served three-day notice and its proof of service.

Technical Mistakes Can Cause Delays

If the landlord or property manager has taken this process on by themselves there is a possibility that they have made a technical error in the processing, preparing, serving, and filing these documents.  There are several technical areas of the law which must be followed or will result is substantial delays if they are not.  A tenant who hires an attorney will likely find these technical errors, if the court doesn’t find the errors.  This will likely result in delays which means money to the property owner.  The best course of action in these situations is to hire an eviction attorney to help prevent delays and additional costs for the owner.

Court Proceedings Require that All Parties Appear in Front of a Judge

If the tenant does not contest the eviction

A properly served tenant has five days to oppose the eviction.  If substituted service was used then the tenant would have fifteen days to file a responsive pleading to the action.  If the tenant fails to oppose the eviction the landlord or property manager will seek a default judgment of possession of the premises.  This will most likely be granted and the case will be referred to the Sheriff’s office for tenant lockout (see below).

If the tenant contests the eviction

In the event the tenant hires an attorney and contests the eviction then things will take a while longer.  The tenant will be granted more time to prepare and there will be approximately thirty-day period in which a trial will be set.  If the landlord wins then the tenant will have to pay the rent and other losses most likely including attorneys’ fees.  If the tenant wins the landlord may have to pay attorneys’ fees.  In this situation a property manager really needs to be represented by counsel.

The Landlord or Property Manager has the Right to Lockout the Tenant

Assuming a landlord victory the county sheriff will post a ‘Five-Day Notice to Vacate’ the premises on the tenant’s door or entry into the business.  On the sixth day the sheriff meets the landlord or property manager at the property.  The landlord or property manager then receives a receipt of possession of the property.  If the tenant is still there when the sheriff arrives, the sheriff will then physically remove the tenant.  The landlord or property manager will now have a locksmith come and change the locks to keep the tenant out.

Notice to Claim Property

If the tenant leaves behind personal property there are state statutes that deal with this specific issue.  The landlord or property manager must give the tenant fifteen days after the lockout period to claim any possessions from the property, or if the tenant left before the lockout, eighteen (18) days after the mailing of the “notice of belief of abandonment” to the tenant’s last known address.  The notice must describe the property with specificity so the tenant can identify it, and the notice must also describe the storage costs.  A prudent practice for a landlord or property manager would be to photograph and log all of the tenants’ belongings so that there was not a later dispute.

It is not legal for a landlord or property manager to hold a tenant’s personal property as security for payment of money awarded by a court judgment.

Unclaimed Property Disposed of or Sold

When the fifteen day waiting period is over the landlord or property manager can dispose of the tenant’s personal property if it is worth less than $750 or $1.00 per square foot, whichever is greater.  If the property is worth more the landlord or property manager must auction it through a public sale held after properly published notice with the proceeds turned over to the county, minus expenses.

Conclusion

Although this article has briefly touched upon this process one should see that this is not a simple process, but is a process which should be taken seriously and professionally.  It is always a best practice to have an eviction attorney help a landlord and/or a property manager through this process.