They Won’t Move Out!

By Robert L. Cain, Copyright 2022, Cain Publications, Inc.

We have had problems with my tenants’ refusal/difficulty vacating the rental unit after the lease term has expired. We have told them well in advance that we will not be renewing the lease, but they still will not leave at the designated time. HELP! What do I do to get them out? At this point, isn’t this considered trespassing? How do I get them out? Am I able to lock them out of the dwelling? Thank you for your advice on this matter, Jane Jefferies

Every once in a while landlords have to deal with people who seem to be unable to rent the U-Haul and get their stuff somewhere besides their ex-landlord’s property.  Usually, those who are not wanted have the good sense and grace to move out.  Apparently, these folks have neither good sense nor grace.  You are in a position to make their renting from another landlord extremely difficult by providing an accurate reference when a prospective landlord calls you for a reference. This offense ranks right up there with a midnight move-out owing two months’ rent. 

In the meantime, however, to protect yourself from the court system that consistently comes down on the side of tenants, take some specific steps. It doesn’t matter if the tenants are good, bad, or somewhere in the middle; courts in many places go out of their way to protect tenants from those “evil, greedy, uncaring landlords.”

Those tenants are trespassing, but you would have no luck with the police having them removed since police don’t want to get involved in a “civil matter.”  That is in spite of the fact that these people are in the property stealing the rental because you can’t rent it while they are occupying it. Besides, the police officers would have to write long reports about what happened, something that, trust me, they hate to do. 

You will have to file an eviction against these holdover tenants. One step that might persuade these squatters to move immediately is that you inform them that you are going to file the eviction at the courthouse the next day if they have not vacated.  This is a slam-dunk eviction since they had been notified, presumably in writing, that they were to vacate at the end of the lease.  Big warning! If you did not notify them in writing, you will have to begin the process all over again. Otherwise, the judge would throw the case out of court since you have no proof that you told them you were terminating their tenancy. Check the procedure for starting the procedure in writing below.

Do not, under any circumstances, ever, even think about locking them out until you have the judge’s order in hand evicting them and a deputy sheriff or constable to serve the papers.  Locking them out is called constructive eviction and is illegal in every state.  Likewise, don’t take the front door off, turn off the heat or electricity.  Anything you would do to make living in the property difficult or impossible is considered constructive eviction and would result in a judge ruling letting your tenants live rent-free for several months.

If your “notice” that you would not be renewing their lease and they were going to have to move was oral, it is not valid.  Here’s what you have to do.

Send a notice in writing, according to the laws specific to Chicago, where your property is.  Laws are different in every state and in some cities, so do not under any circumstances use a form you find at the office supply store.  Those forms are generic and dangerous, and probably comply with few state laws or city ordinances and almost certainly not the ones where your property is.  Get a form from your local apartment or rental owners association, or from an experienced real estate attorney. If you use the wrong form, your tenants could end up staying rent-free for three months.

Make sure you give adequate notice, whatever that is in your area.  Most state laws are for 30 days, but check to make sure.  Also, make sure the procedure for serving the notice.  Can you mail it Certified Mail?  Can you send it First Class Mail?  Must it be hand delivered?  Must it be served by a process server?  If you don’t do it right, once again your tenants get to live rent-free for a couple or three months.

Finally, do not accept any rent from these tenants during this debacle.  If you accept rent from them, you have confirmed their tenancy and must begin the process all over again. 

These tenants will get out soon as long as you do everything exactly correctly. As I said before, the courts are there to protect tenants, not landlords.  With each step, you take to get rid of these undesirables, keep that in mind.  Your final reward will be when you get a call from another landlord asking for a reference.

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