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I filed an eviction complaint last Friday after not receiving December's rent and sending the pay or quit letter without any reply. Today the tenant contacted me and said he wanted to pay December's rent (likely partially as he is still borrowing money). The court date is January 7，2013.
I am thinking of withdrawing the case if he can pay December's rent in full, plus the late fee and the court filing fee. Will he get to stay if he only pays the rent in full in court? In that case, how do I get the late fee and court processing fee back?
Considering he is having difficulty paying December's rent, I doubt he will be able to pay January's rent in time. If he fails to pay January's rent, do I have to file an eviction complaint again?
I would not accept payment unless he can pay in full, including all legal fees and late fees. Otherwise, if you take a partial payment, it is likely you then have to refile a new pay and quit and set a new court date.
And yes, if he does pay in full, but then does not pay again in January, you have to start the process over.
Every state handles these things differently, so it would be a good idea to consult with a local attorney on this sort of details, so you know the right way to handle it in the future.
NO DO NOT take the money he offers.. you will only have to go this Again in Jan. Its not worth it .. get him out now and be done with the problems and him as a tenant
I am not accepting any payment for now. But if the tenant chooses to pay December's rent in full at the court appearance (January 7), I think the judge will dismiss the case, right? If that is the case, does it imply the tenant can always stay at the rental property by waiting for the court appearance and then pay the full rent in court? If so, how can the owner collect all the late fees and especially recover the legal processing fees?
There's no scenario in which the tenant can "choose" to pay what's due the day of the court hearing without either going before a judge or legally arbitrating and entering into a legal agreement with you prior to the case being heard. If he's still living in the unit at the time of the court date and your case prevails, then the judge will give him so many days to vacate and you'll be awarded rents due plus late fees plus court costs.
You might want to contact Legal Aid in your area to see how the process works or consult with an attorney. Good luck.
Here is what I found in the Minnesota "LANDLORDS AND TENANTS: RIGHTS AND RESPONSIBILITIES" book (page 25):
If the Eviction Action has been brought only because the tenant owes rent, and the landlord wins, the tenant can still “pay and stay.” To pay and stay, the tenant must pay the rent that is past due (in arrears), plus interest (if charged), plus a $5 attorney fee if an attorney represented the landlord, and finally, any “costs of the action.” Costs of the action includes the filing fee plus the process server fee, plus witness fees if one was subpoenaed (called) for trial; costs do not include other legal or similar fees for handling/processing the case as those are capped at $5.
The court may give the tenant up to a week to pay the court costs. If a tenant has paid the landlord or the court the amount of rent owed, but is unable to pay the interest, costs and attorney’s fees, the court may permit the tenant to pay these amounts during the time period the court delays issuing a Writ of Recovery (eviction order).
^^^ Rather than taking as absolute what's written in a landlord tenant handbook, you're better off consulting an attorney or someone at your local Legal Aid office for clarification. This would be an excellent investment since you've never been in small claims court before - at least in this sort of situation. Good luck.
Don't take any money other than payment in full. Meaning all late fees, court costs and full Decembers rent.
Even if he goes to court and tell the judge he will pay in full he will by than have to add full payment for January as well.
That to me is very unlikely and just as I have heard many times over...just a dead fish and you need to get rid of him....it will only will go on and on.
You could reply to the tenant in writing and don't communicate otherwise by stating the full amount expected to avoid eviction...tenants are good in making promises but you know want to see the green! I always write to tenants that the only thing that can avoid the eviction to move forward is full payment and incl. all costs and even give them the option to move out and let them know they may get their security deposit back if they leave it clean and empty...some have done that...I love the word "may".......
Just last week we got one out without filing the eviction and he left it clean and empty so no additional costs and waiting time...it was a little over a month prior to ending of the lease and every month late...I told him if he would leave within 2 days he may get his security deposit back...and he left, than he emailed me about the security deposit and I remembered him about Decembers rent...haven't heard from him yet....
If you are evicting for non-payment and the tenant comes up with the full amount owed, you must accept it and that cancels the eviction. You do not have to accept partial payment and if you accept any money, that cancels the eviction and you will have to start over again.
So tell him you will accept 100% of what is owed and nothing less. That would be all rent, late fees, and filing fees.
If he is month to month, give him a 30 day notice to vacate as soon as you get your rent. Then you can evict for overstay as well as for non-payment. It gives you more options to get him out.
Also, if he pays, then next month give the pay or quit on the very first day that you are legally allowed to issue it and file for eviction as soon as possible. Don't give him even 1 extra hour. Get those notices out.
Check your local law. In some states, 3 pay or quits and you can evict even if the tenant does come up with the rent money.
I'm on month to month and if I ever have to give a second pay or quit, they get their 30 day notice to vacate. I refuse to stress over whether or not I will get my rent.
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