Tenant Eviction and Month to Month Lease: TN

Tenant Eviction and Month to Month Lease: TN

Investor · Houston, TX · Member since 2011 · 209 posts · 56 votes

I just recently closed on a duplex in Memphis at the end of March. Tenant in one of the units informed me she will be moving out at the beginning of April. She moves 80% of stuff in the beginning of April. She still has stuff inside the unit. I contact her and she told me she will pay me rent and move the rest of the stuff out in 2 weeks. PM and myself read over the TN laws and found an abandonment clause. We sent the letter and had to wait 10 days of no response from tenant to gain possession of the unit. Of course she calls. A clause in the previous lease states that if the unit isn't occupied for 5 days, the owner has the right to take possession, PM was told by his attorney that this clause is unenforceable? I am trying to figure out would I have to go through the eviction process to gain the unit back.

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Alex CraigBusiness Member
Real Estate Professional · Memphis, TN · Member since 2009 · 1k+ posts · 1k+ votes
12y

Chris's recommendation of attorney would know the answer, but I am thinking you need to go through the eviction process or she could return to the house and have a right to stay there. We went through a similar situation where the tenant vanished with all their stuff in the home. We went through the eviction process, gained possession, then had to store the tenants belongings for 30 days.

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  • Chris ClothierBusiness Member
    Rental Property Investor · memphis, TN · Member since 2009 · 2k+ posts · 3k+ votes
    12y

    Shawn -

    I would contact an attorney here in Memphis that specializes in tenant/landlord issues. I can recommend Craig Beard. He is a very good attorney and can answer your questions for you from a point of view of experience. If I remember correctly from reading here on BP, you recently bought this property in Memphis and may have inherited the PM as well(?). In that case, I would take their advice and also get some of my own from another attorney as I am learning the Memphis tenant laws and courts.

  • Investor · Houston, TX · Member since 2011 · 209 posts · 56 votes
    12y

    Chris,

    Thanks. I hired the PM after I bought the property but inherited the tenants.

  • Alex CraigBusiness Member
    Real Estate Professional · Memphis, TN · Member since 2009 · 1k+ posts · 1k+ votes
    12y

    Chris's recommendation of attorney would know the answer, but I am thinking you need to go through the eviction process or she could return to the house and have a right to stay there. We went through a similar situation where the tenant vanished with all their stuff in the home. We went through the eviction process, gained possession, then had to store the tenants belongings for 30 days.

  • Rental Property Investor · Memphis, TN · Member since 2011 · 111 posts · 40 votes
    12y

    Shawn,

    Your clause is not enforceable and your tenant has not yet abandoned the unit. If she said she will be out in two weeks, set up a time to meet her at that time and get a "Release to the Rights of Possession Form" signed (see my files). That will give you possession of the property and you can move forward even if she leaves stuff.

    In the meantime, you can file for eviction if she has not paid you. Be sure your lease has the "waiver of notice" clause. If not you have to send notice to pay or quit before you file or your case will be thrown out.

    If you never hear from her again, you can then assume she has abandoned the place. That process will take at least 30 to 60 days to complete before you get possession. In other words, a long time and then you have to store the stuff.

    Eviction is expensive and cumbersome and abandonment takes time. Can you offer her some cash ($100?) to sign the above mentioned release form (read up on cash for keys)? Trust me, it will be easier and cheaper. If you decide to go the eviction route, use an attorney experienced in that process in this area. Do not try to do it from MD.

    Good luck from a former Marylander,

    Kevin

  • Rental Property Investor · NY · Member since 2013 · 844 posts · 350 votes
    12y
    Kevin Perk I understand the concept of the waiver of notice but in your experience have judges been ok with this form in a lease and it holding up in court? I would think some judges might view this as unfair waiver of their rights according to the landlord tenant act.
  • Rental Property Investor · Memphis, TN · Member since 2011 · 111 posts · 40 votes
    12y

    @Eddie T.

    Tennessee Code specifically allows for a waiver of notice so long as there is a clause waiving it in the lease.

    In my experience, judges here in Shelby County, TN will ask to see your lease and the waiver clause. If the clause is there, no problem. If not, they will dismiss your case.

    In short it all depends on your state statute. So know your local laws.

  • Wholesaler · Nashville, TN · Member since 2012 · 40 posts · 5 votes
    12y

    @Kevin

    What happens if there is no lease.

    Parents own the home, sell it without notifying the child (don't want to evict child). Parents and child don't talk.

  • Rental Property Investor · Memphis, TN · Member since 2011 · 111 posts · 40 votes
    12y

    @Martin S.

    Martin,

    I am not a lawyer and you need legal advice, so take all of this with a grain of salt. Consult someone more knowledgeable than I.

    There is an unwritten lease. With an unwritten lease the problem is that the terms of the lease are unknown and the new owner has to honor the terms of the lease. Knowing a couple of things however may help the new owner.

    How long has the tenant lived there and how often do they pay rent? If the answer is over a year and monthly you may be able to claim that the tenant is on a month to month term and thus give 30 days notice that you are terminating the lease.

    However, with an unwritten lease everything is really up in the air. In front of a judge it can come down to he said/she said. So find a competent landlord attorney in Nashville to help you navigate this.

    Good luck,

    Kevin

  • Real Estate Investor · Carmichael, CA · Member since 2013 · 111 posts · 16 votes
    12y

    I thought PM will take care of eviction? so what is the function of property manager?

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