RENTAL MANAGEMENT EDITION
One might think that the biggest breach of a lease is to not pay your rent. Well, as one area judge said when a landlord presented that case in court, “Not in these parts.” While it is a breach of lease not to pay rent, Failure to Pay Rent (FPR) is handled in a totally different manner in Landlord-Tenant Court. Non-payment is a whole separate subject for another post.
Here we will deal with the other breaches and what to do about them. Some of the more common breaches include:
Illegal Use of the Premises (commercial, drug)
Excessive Property Damage
In each of these cases, the landlord must demonstrate that the condition or action was a violation of the lease and that the condition or action actually exists. Looking at the list, most of these are visible, although maybe not at all times. But, if you want to remove your tenant, you may have to be a detective and conduct a stake-out so you can catch ‘em in the act. Then, as the saying goes, a picture tells a thousand words.
It will also play well in the landlord’s favor if there was a notice issued to correct or to cease & desist and the condition or activity continued. Then, the tenant cannot claim they did not know. In most cases, the landlord issues a warning and, if the breach continues, a notice to vacate. That notice must be in proper form and allow the proper time to vacate. Only then do we proceed to court on the breach because the tenant failed to vacate.
When arguing a breach case, as always, it is the duty of the plaintiff to prove the case. This begins, like any rental trial, with the establishment of who are the parties in the courtroom (identification of landlord and tenant), that a tenancy exists and that there is a written lease. Nothing is to be assumed—do this even if the tenant fails to show-up and defend. From there, the landlord will present evidence of the breach, including photos, repair estimates or invoices, housing violation notices and photos. The evidence should support the alleged breach and the landlord will draw the attention of the court to the specific language in the lease that the tenant is violating.
Of course, anyone being sued or charged has the right to present a defense. They also have the right to be represented by an attorney. If you are unfamiliar with the court process, do not know how to mark and introduce evidence or are intimidated by a strong defense or adversarial lawyer, you should not represent yourself.
The objective will be to secure judgment for possession showing that the tenant has breached the lease and that the vacate notice was proper and enforceable. This will give us the ability to obtain a writ and have the Sheriff enforce the writ with eviction being the final step.
Chris Majerle, PCAM