by Joshua B. Rosenzweig (Spring 2017)
During my time practicing as an attorney, I have represented both residential and commercial landlord in hundreds of court proceedings. For the most part, I have represented landlords in the eviction of tenants due to non-payment of rent. In some instances, I have evicted tenants for failure to adhere to the terms of a lease. And, I have also been retained to represent landlords that have pursued non-paying tenants for the collection of a judgment based on the non-payment of rent.
As most landlords will attest, rental properties can be a major headache and can result in significant distress. But, if you are a landlord, there are ways to lessen the likelihood of ending up in court chasing down unpaid rent. Below are a few simple steps landlords can follow to ensure they don’t end up chasing former tenants.
Lesson No. 1: Obtain a Rental Application
If you are a landlord, and you are renting property, make sure your prospective tenant completes your rental application. On the rental application, you should obtain the prospective tenant’s employer’s name and location, the prospective tenant’s date of birth and Social Security number, and references from prior landlords. While obtaining this information seems simple enough, it is common that a landlord does not want to take the time to ensure their prospective tenants are worthy of occupying the landlord’s property.
Obtaining the name of the prospective tenant’s employer will make life a lot easier if the tenant defaults on the terms of the lease, either in the payment of rent or in the causation of property damage. If the tenant fails to pay rent, and the landlord must evict, the landlord has sure-fire way of recovering the unpaid sums due – by instituting a wage deduction against the employer to garnish the tenant’s wages. Obtaining the employer’s name will save you time and result in your recovery of significant sums of money.
Obtaining the tenant’s date of birth and Social Security number will also be very helpful when the time comes to collect a money judgment based on unpaid rent or property damage. If, as a landlord, you don’t know where a tenant works, the date of birth and Social Security number can be used to locate the tenant’s next residence and, in some instances, can also be used to locate where a tenant does her/his banking. If you can use the date of birth or Social Security number to locate the tenant’s bank account, then you can garnish the bank account through a non-wage garnishment.
Obtaining references from a tenant’s prior landlords is important because it will give you, as a prospective landlord, early insight to the potential headache forthcoming. If any prior landlord refuses to talk to you, or refuses to answer your questions about whether a prospective tenant is a “good” tenant, this should be an early tip that the prospective tenant is not someone you want occupying property you own. Get the references and do the leg-work up-front to avoid major problems later.
Lesson No. 2: Don’t be “Mr. Nice-Guy”
Landlords frequently make the mistake of trying to “see the good” in their tenants or giving their tenants the “benefit of the doubt.” Again, this leads to problems later on in the relationship in two fashions: (1) the tenant knows that she/he has some leeway when she/he does not adhere to the terms of the lease; and (2) by not enforcing the terms of the lease as written, you may be giving the tenant an argument against you based on “course of conduct.”
I have dealt with many landlords that try to be too nice to their tenants. Often, they say, “Well, I figured if I gave him one more chance in paying his rent, he would come through.” Too often, one chance becomes a second chance, then a third chance, and so on. The problem, for example, with not obtaining rental payments on time every month is that landlords often rely on those rental payments to pay the mortgage on their rental property. Well, if the rent is not being paid, then the mortgage won’t get paid either. And, I think we all know that the mortgage company is not going to give you a second, or third, or fourth chance to pay the mortgage late.
The second issue with trying to give the benefit of the doubt to a tenant is that a court may look at the manner in which you have conducted yourself as establishing alternate terms of the lease. For example, if a landlord enters into a lease with a tenant, and the lease provides that rent is due on the 1st of the month, but the landlord tells the tenant, “don’t worry about paying me on the first, if you get it to me by the 10th, we are all good,” does the landlord run the risk of a court not evicting that tenant when, after 10 months of occupancy, the tenant has paid rent late all 10 months? The answer, which should come as no surprise, is “YES!” I have been in front of a number of judges throughout northern Illinois that will not allow a landlord to enter into a course of conduct contrary to the terms of the lease and then try to adhere to the lease once the issue is brought before the court. The way to avoid this situation is simple – stick to the terms identified in the document.
Lesson No. 3: Don’t Post Notices
One of the most common mistakes landlords make in trying to evict a tenant that has violated a lease is the posting of a notice. Whether it is a five-day notice for failure to pay rent, a ten-day notice to quit due to a lease violation other than rent, or a 30-day notice to terminate a month-to-month tenancy, the landlord should always make sure to serve the notice by placing it in the hand of the tenant, placing it in the hand of someone 13 years of age or older who lives on the property, or mailing the notice via certified mail and obtaining a return-receipt request executed by the tenant.
Posting is not permitted for service of a notice unless the landlord knows the tenant has vacated or abandoned the property, and the landlord is only serving the notice out of an abundance of caution.
Lesson No. 4: Make Sure Attorney’s Fees are Provided for in the Lease
Another common mistake made by landlords is that they enter into leases with tenants that do not provide for the recovery of their attorney fees. Therefore, the landlord has to come out of pocket to recover their property. A contested commercial eviction can become costly, and a lawsuit to recover property damage caused by a tenant can be even more costly if there is no right to recover attorney’s fees from the former tenant.
There is a simple solution to this problem. Include the following language in your lease: “If the landlord has to file suit to enforce any term, obligation, covenant or promise made by tenant pursuant to this lease, then the tenant shall be responsible for the payment of the landlord’s court costs and attorney’s fees.” Therefore, if you, as the landlord, obtain a judgment against a deadbeat tenant, you can collect the unpaid rent and your attorney’s fees as well.
It is impossible to fully protect oneself as a landlord from the actions of devious tenants. But, following the aforementioned lessons can reduce the headache.