Tenant Vacates before Eviction Hearing

[Lorraine Pennington]

Hi All, 

I searched BP and couldn't find any past threads about this topic so wondering if anyone has encountered my situation! 

I have a tenant who flat out told me they were not going to pay June rent. I served a 3 Day notice of non-payment on June 8th and then filed a petition for eviction with the courts on June 12th. Our court date is set for June 24th. 

Another tenant (it's a 4plex) reported to us that there was a Uhaul truck there last night and that the tenant was moving their stuff. So there is a good chance this tenant will be gone in a few days ... and not even show up to the court hearing. 

I still plan on proceeding with the court hearing to get the judgement ... but my question is this: Can I take back possession of the property now? I can call and knock on their door but Tenant has been unresponsive during this process so I don't expect to get any confirmation of their vacancy directly. So do I have to wait until after the court date? Or just post a 24 hour notice of inspection and then enter the premises? 

Any input would be appreciated. 

Thanks, 
Lorraine

[Mike H.]

Legally, you need to check with your attorney.

For me, when I realistically believe that the tenant has moved out, I try contacting the tenant and see if they've moved. In your case, I'd ask them if they've moved out because you want to know how to proceed given the eviction hearing is coming soon.

Word it in such a way that you aren't saying you will drop the eviction if they've moved out because you don't want to do that if you're wanting a judgment. But if you can get them to say yes, then you're good to go.

If they say they're moving out and move all their stuff out, then I have no problem taking a unit back. I take pics showing all the signs of habitation have been removed (i.e. no furniture, beds, etc) and call it a day.

Is there a chance the tenant can ding me? Maybe. But most tenants have better things to do with their time. And there's always that fear that they may get in front of a judge who asks them what they expected was supposed to happen when they didn't pay and then moved all their stuff out?

I call it the "reasonable" defense.  I may in fact be liable for something from a legal standpoint by doing it as I technically am not being given written notice nor are they giving me the keys.  But I can reasonably infer that they have moved out because they clearly have. So my intent was not malicious.  Maybe the judge awards them a month or something in a worst case scenario. Maybe more in a doomsday scenario.  But I'm willing to risk it most times and just assume the "reasonable" defense will keep that risk to a minimum.

And 999 times out of 1,000, I don't see the tenant contesting occupancy at that point anyway. Why would they? They've moved on from that place and aren't going to fight to get back in knowing they're going to be hit with an eviction.

That being said, I would drop the eviction process if you have the unit back. Its not really worth the time/effort to collect is it? Keep their security deposit for the final months' rent and be happy they're gone... :-)