Will I win this eviction case?

Question

Hi Bigger Pockets,

I super appreciate your time and help here.

I have a really difficult tenant in my house.  On Friday I posted a 3-day comply and pay or vacate notice.  He had not paid rent and had modified the property without written consent (he removed a front porch overhang 4x4 post and frosted the front door, back door, and bathroom windows).  In that 3 days, he did pay rent, but did not cure or "undo" the house modifications.

I would like to file the eviction based on him not curing the house modifications.

From my perspective a breech of the lease is a breech of the lease.  My question is:

Do you think I have a strong enough case with him removing a 4x4 post on the front porch (I am not sure if it's load bearing or not) and frosting a few windows?  Will I win this eviction case?

Thanks,

Ryan

Marcia Maynard · Answer

Are these the only problems you have with this tenant? Are they on a long-term lease or month-to-month rental agreement? Have you talked with the tenant and tried to negotiate a win-win solution? Have you given them proper legal notice to comply/cure?

1. Check to see if the tenant really had the glass windows frosted, or if he merely applied a removable frosted plastic film on them. Did you provide suitable window coverings initially? A tenant has a right to privacy. I'd work with the tenant on this one.

2. Check to see if the porch post was load bearing or not. This is an egregious modification. It can be upsetting to see a tenant do something like this, but these things happen. I'd address this one differently. Be professional and polite. Find out how why he made the modification and how much it would cost to return the porch to its original condition. Think twice about whether you want the tenant to do the work required to return the porch to its original condition. Hiring a professional may make more sense.

We've had a tenant or two modify a property without our prior written consent, in violation of the rental agreement. If it was important enough for us to return the unit to it's original condition right away, we did so and charged the tenant for the cost. If it was an improvement we wanted to keep, we let the tenant know that although we like the modification, they are in violation of the rental agreement and need to remember to get our prior written approval before taking action. We've also charged the tenant for damages at the time we discovered what they had done and chose to fix it later.

Time to review the terms of the rental agreement again with the tenant!  You can choose to make a good faith effort to bring the tenant back in compliance with the terms of your rental agreement and save the tenancy. Try for a win-win, before taking the path of lose-lose.

Even though you think you can win an eviction court case based on the tenant's non-compliance with the terms of the rental agreement, don't count on it. It's much more difficult to evict based on something of this nature, especially if you haven't tried to resolve this outside of court.

Even if the judge ruled in your favor, you would still lose because evictions are costly.... in time, money, and stress. Plus, you'd have a tenant who would be leaving under unfavorable circumstances. He'd be much less likely to leave the place peacefully, clean, and without further damages.

Don't proceed without understanding the landlord-tenant laws for your jurisdiction. Consult with an attorney or landlord mentor in your area who has expertise in this arena. Any misstep can make matters worse for you.

Marcia Maynard · Answer

Sorry to hear about your situation. What did you do for tenant screening? Rather unusual to have all these problems from the start. You may have selected the wrong candidate, or unbeknown to you, he is "Dr. Jekell and Mr. Hyde". It would be good for you to review how you got here. Beef up your tenant screening process.

Find out what makes this tenant tick. Why is he aggressive? What would it take to calm him down? Why do you think he chose your place? What is his intention? Document each incident well and take measures for your personal safety and that of the neighbors. Real threats to person or property would warrant calling in law enforcement. Or he may just be an ornery type of fellow. We don't have to like all of our tenants, but it sure makes it easier when we do. Try to find something positive about him. Whatever you dish out to him, may fly back into your face. Moves and counter-moves. So keep that in mind as well.

If he departed voluntarily, it sure would beat eviction through the courts. Negotiate a move-out plan. To do so I would start by saying "This isn't working for us. It seems this isn't working well for you either, so let's talk about a move-out plan." Each time he breaks a term of the rental agreement or a property rule, address it swiftly and professionally. Set clear boundaries. Serve proper legal notices and follow through, but do so with the guidance of an attorney who specializes in Landlord-Tenant law.

Two year leases are not common with residential rental property. Long term leases tend to be better for tenants than for landlords, because tenants will move when they want to move, regardless of the terms of a lease. It makes it more difficult to terminate a tenancy. Consider month-to-month rental agreements from now on. In the meantime, develop your moxie and enforce the rental agreement terms as best you can. Be careful not to make a wrong move.

P.S. Some documents I uploaded into the BP file place may help you out. Go to Tools > File Place > Other Documents and look for some those with my name on it (tenant screening, rent past due letter, property rules, etc.) or pull up my profile and link from there. Check out podcast #83 too. Good luck!

Bill S. · Answer

If you want to win the case hire an attorney that specializes in landlord tenant law and follow their advise to the tee. Based on what you have said, I would say your case is less than 50-50 to win. The courts do not like to evict for anything but money. In most cases they are run more like "the peoples court". Spit the baby work, out win win or lose lose, and usually side with the whiney tenant unless a slam dunk for the landlord. This is especially the case for grey areas like modification to property. All that said, I'll say it again, Get a Lawyer!

Also based on what you said, you should have posted two notices. One for the late rent and one for the property modifications as they require the use of different forms.

Marcia Maynard · Answer

Take a look at some other forum discussions about tenants who take it upon themselves to "improve" the property. Learn how to address unauthorized improvements and structural changes.

https://www.biggerpockets.com/forums/52/topics/478...

https://www.biggerpockets.com/forums/52/topics/471...

Kim Meredith Hampton · Answer

@Ryan D. The before and dafter pictures are essential, so hopefully you did this prior to his occupancy.

In Florida, we must post a 7 day notice of non compliance with "opportunity to cure". They have seven days to take care of the problem. if they don't remedy the problem, you then give them a 7 day notice of non compliance "without opportunity to cure". Check your landlord tenant laws for your state as to how to handle this properly

Linda Weygant · Answer

Pictures, pictures, pictures when it's time to go to court.  Before Pictures as well as After Pictures, preferably with date stamps on them

MIchael Rickerd · Answer

As a Structural Engineer for my day job, I am 99.99% certain that that 4x4 is a structural member.

I would have had that replaced yesterday. Thankfully it isn't snowing quite yet.

Ryan D. · Answer

Hi Marcia,

Great feedback. Thank you.

We have had significant problems with the tenant in only the one month since moving in. And unfortunately we are only 1 month into a 24 month lease.

He didn't pay rent (paid on the 3rd day of the pay or vacate notice). He has threatened and harassed me as well as work crews I have had come to the house.  I have tried twice to negotiate a win-win by offering him his full security deposit and last month's rent back. He ignored both of my requests to part ways civilly.

I agree about the frosting. It's a minor issue and although we did provide window coverings, it's not the meat of our case. It's the 4x4.

Really we can fix this easily and probably inexpensively, however, we are looking for an legal opportunity to get him out of the house.

Thanks,

Ryan

Ryan D. · Answer

Hi Linda and Kim,

I do have pictures of before and after.  Interestingly enough, the tenant texted me pictures of the work after he did it.

I will file the paperwork for the eviction asap.

I believe in Colorado it's just the 3 days cure time.

Thanks,

Ryan

Ryan D. · Answer

Hi Linda,

Thanks for the reply and solid point. My lease states the following:

8. ALTERATIONS AND IMPROVEMENTS. Tenant shall make no alterations to the buildings or improvements on the Premises or construct any building or make any other improvements on the Premises without the prior written consent of Landlord. Any and all alterations, changes, and/or improvements built, constructed or placed on the Premises by Tenant shall, unless otherwise provided by written agreement between Landlord and Tenant, be and become the property of Landlord and remain on the Premises at the expiration or earlier termination of this Colorado Lease Agreement.

With that provided, it sounds like I do have a strong case.  Thank you!

Will I win this eviction case?

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