New LL wishes to kick out non-paying commercial tenant (sales, lease)
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My wife and I recently bought a very small 3 story building that came with a Chinese fast food takeout place in the storefront and basement.
Their lease runs out in Dec 2012.
Every month collecting rent has been a hassle. I won't go into all the details, but I believe that I have been generous in responding to their many, many complaints, while they have only made demands re. how much of their rent they are willing to pay, and have never been willing to even negotiate with me on this.
After many months of this, I finally decided to make good on my threats, and start eviction proceedings based on non-payment of rent.
To save money I have launched to eviction procedure without a lawyer, and I believe that I have been very careful to follow the letter of the law in serving all the various papers, as well as collecting affidavits.
After their not responding to the court, I am at the stage of having a marshal bring all the paperwork to the court and ask for a judgement from a judge, which, he said, could take up to 5 weeks. If we get this, the marshal will then ask for a warrant, which would lead to the actual eviction.
My question is: should I hire a lawyer? (We are very financially stretched) -
I mean, would this speed up the process or result in a faster eviction with a better chance of seeing any of the lost rent money?
For example, Marshals do not petition courts for Judgments nor Warrants.
Petitioners, that w/b YOU, petiton the court for a judgment and warrant. Marshal's EXECUTE Warrants! That is they, with Warrant in hand, will physically lock out and/or eject the tenant.
IF, indeed, the Tenant, did not appear to answer in court, then I presume a *Default* Judgment will be/has been entered by the court and eventually a Warrant.
The thing is that once the Judgment is entered and served upon the Tenant, the Tenant is likely to appear in court requesting an Order to Show Cause - WHY the judgment and warrant have been issued. Likely a Temporary Injunction will be issued by a court, halting the eviction.
You, Petitioner-Landlord will be required to appear in court to answer the Order and to have the Temporary Injunction lifted. This is all rather standard and par for the course.
You will have to prove, in effect, that the Judgment and therefore the Warrant were issued for good cause and in proper order.
The second thing will that the Respondent-Tenant will likely claim that they were never properly/legally served/notified. Which is why the Tenant nevered appeared in court. Respondenants have a RIGHT to be heard and to respond to your Petition. If the Respondant did NOT know to appear in court, then obviously they were denied an opportunity to respond.
IF, indeed, a court is convinced that the Tenant did not know to appear, then the court will surely vacate the Judgment and the Warrant of Eviction will be canceled.
There will be a Hearing and you, Petitioner-LL, will have to PROVE that Tenant-Respondant was, indeed, legally/properly served and notified. That Tenant DID know to appear in court but choose not to.
In order to prove this, you will need to convince the court. This is done by providing proof of Service and Receipt of Notice. Proof is, normally, comprised of one of/the following (best to worst order), all, or a combination:
A) Personal service effected by a Process Server, who provided an Affidavid stating such, and/or testifying personally in court.
B) Service by mail, ordinary and certified, return receipt. You will need the postal receipts in order to prove service by mail, and that the Tenant actually received notice.
C) Personal service by you, the LL and/or the LL's agent, having publically posted notice at the premises AND personal service, by hand, upon the Tenant. Of course, you, the Petitioner-LL will have to testify as to your actions in effecting service; PROOF by way of a witness to your service is generally necessary to convince a court. So take a witness in this event who can and will appear in court to testify.
Also, NOTICE must be effected in a timely fashion and to the letter of the law.
If you cannot provide proof and/or convince the court that service was properly effected and/or if the Notice itself was improperly prepared (not according to the law), the Judgment WILL be vacated; and you will need to start the proceedings anew.
Another snag which can occur is that providing Notice and your Petition are all effected (properly or not), and the court schedules an appearance date, the COURT is responsible to notify the Respondent. The Court, normally provides notice of the appearance date by mailing the Respondent a post card with the requisite information.
Often, the Respondenant-Tenant will claim and testify to the court that post card notice was never received, and consequently the Respondent did not know to appear and could not answer the Petition. That the first the Respondent knew of the proceeding was upon receipt of the Judgment/Warrant, and/or when the Marshal showed to effect eviction.
It is common for the Respondenant-Tenant to be faced by a Marshal and to then IMMEDIATELY RUN TO COURT AND PETITION FOR AN order to Show Cause and a Temporary Injunction. If the court is convinced and/or accepts the claim that notice of appearance was not received, the the Judgment will be vacated.
If you, as LL, do not know precisely what you are doing, it is best to have an experienced attorney effect the above. Especially, if the Tenant is knowledgeable and experieced with the court system. It is important that proper and timely notice be served, and that ALL papers submitted to the court and served be PERFECT w/o error or confusion!!!
Utilizing the servives of an experienced attorney, with an efficient office, can minimize error and mistake which will minimize costs and time to eviction. It also might facilitate the solution of any issues, which may preclude an eviction proceeding altogether.
Choose an inexperienced and/or un knowledgeable attorney and the results will likely be no better or worse than you could do yourself.
My wife and I recently bought a very small 3 story building that came with a Chinese fast food takeout place in the storefront and basement.
Their lease runs out in Dec 2012.
Every month collecting rent has been a hassle. I won't go into all the details, but I believe that I have been generous in responding to their many, many complaints, while they have only made demands re. how much of their rent they are willing to pay, and have never been willing to even negotiate with me on this.
After many months of this, I finally decided to make good on my threats, and start eviction proceedings based on non-payment of rent.
To save money I have launched to eviction procedure without a lawyer, and I believe that I have been very careful to follow the letter of the law in serving all the various papers, as well as collecting affidavits.
After their not responding to the court, I am at the stage of having a marshal bring all the paperwork to the court and ask for a judgement from a judge, which, he said, could take up to 5 weeks. If we get this, the marshal will then ask for a warrant, which would lead to the actual eviction.
My question is: should I hire a lawyer? (We are very financially stretched) -
I mean, would this speed up the process or result in a faster eviction with a better chance of seeing any of the lost rent money?
Something doesn't sound right. When you bought the building, didn't you ask the seller about the rent that the chinese restaurant was paying? You say you recently bought the building but then you say they have never been willing to negotiate the price. Were they paying the previous LL on time and were they paying the same amount?
Thanks, Jc.
While I believe I have all the required paperwork in terms of the service of notices, etc, I cannot prove that the tenant got the postcard, although at the time they stated to me that they did.
This is further complicated by the fact that the name on the lease is a guy I've never seen; the restaurant is run by his wife and son who are not on the lease and claim that the father is in China!
I am also wondering if I should accept any rent from them at this point (if they offer), or would accepting part of the money owed weaken my case when it reaches a judge?
Bellakin, I was assured - of course! - from the previous owner that the restaurant wouldn't be any trouble. Of course I knew that there are no guarantees on a smooth LL/tenant relationship.
Probably few former property owners are willing to get involved between the new owners and their former tenants. And few would indicate to a prospective buyer that they had problems with their tenants.
My issue is not how I got into this mess, it's how to best get myself out!
Thanks, Jc.
While I believe I have all the required paperwork in terms of the service of notices, etc, I cannot prove that the tenant got the postcard, although at the time they stated to me that they did.
This is further complicated by the fact that the name on the lease is a guy I've never seen; the restaurant is run by his wife and son who are not on the lease and claim that the father is in China!
I am also wondering if I should accept any rent from them at this point (if they offer), or would accepting part of the money owed weaken my case when it reaches a judge?
In any event I will talk with a lawyer.
Well, having the required paper, and having PERFECT[ED] papers are two different things! A good atty can can and will find errors which will cause the case to be rejected by the court. Jfyi!
For example, if you did not name the proper party in your petition, that can result in the judgment being vacated. Again, jfyi.
The father being in China, is not necessarily relevant, but w/o specifics....
NO! Do NOT accept ANY further rent payments of any kind. At the least, not until you speak with an attorney. Residential or commercial, once you are commited to the eviction, NEVER accept any funds from the tenant w/o being stipulated before the court!!
Note, accepting funds, generally blows your case, AND blows any effort to recover your court costs!!! Which the Tenant is normally responsible for.
Btw, call your local county bar association, explain your circumstance, and ask for a reccommendation.
Sooo, you have a 'default Judgment', correct?
If so, be prepared for any of the shennigans I outlined as well as others. There are many 'delay' tactics a Tenant can utilize. Experienced tenants and/or tenants with competent attorneys can result in LONG and/or COSTLY proceedings
Realize a commercial tenant is doing business and (presumably) earning the whole time, as well as pocketing rent not paid. This, while the LL continues to pay the building expenses, while receiving no income from the Tenant.
Bellakin, I was assured - of course! - from the previous owner that the restaurant wouldn't be any trouble. Of course I knew that there are no guarantees on a smooth LL/tenant relationship.
Probably few former property owners are willing to get involved between the new owners and their former tenants. And few would indicate to a prospective buyer that they had problems with their tenants.
My issue is not how I got into this mess, it's how to best get myself out!
Jfyi, there a few things that could have been provisioned in the purchase agreement to protect yourself, as well as abit of due diligence in checking the restaurant.
The owner states the restaurant is a good payor and in good standing, ALWAYS require proof!
For example, you could have asked for the payment and deposit records of the owner re the restaurant, blah, blah. Missed and/or late monthly deposits of rent is a BIG clue!
Also, if you had anticipated or suspected that you wind up with an eviction proceeding, you could have demanded compensation, for example in the amount of possible court costs: or, for a portion of the sales price to be held in escrow for a prescribed period (6 months) against the possibility of an eviction. Lots of ways to work things out.
Due Diligence is just one of the things you pay a competent attorney in commercial matters and/or a similarly qualified business accountant.
Jfyi, there a few things that could have been provisioned in the purchase agreement to protect yourself, as well as abit of due diligence in checking the restaurant.
The owner states the restaurant is a good payor and in good standing, ALWAYS require proof!
For example, you could have asked for the payment and deposit records of the owner re the restaurant, blah, blah. Missed and/or late monthly deposits of rent is a BIG clue!
Also, if you had anticipated or suspected that you wind up with an eviction proceeding, you could have demanded compensation, for example in the amount of possible court costs: or, for a portion of the sales price to be held in escrow for a prescribed period (6 months) against the possibility of an eviction. Lots of ways to work things out.
Due Diligence is just one of the things you pay a competent attorney in commercial matters and/or a similarly qualified business accountant.
That's exactly what I was getting at. A friend of mine was purchasing a building with an existing business. When he did his due diligence, he found that that business was not doing well and late on payments. Needless to say, my friend did not buy the building. It wouldn't have been profitable.
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