Have You Lost Your Option to Evict This Month? Learn From What Happened to Me.

May 18, 2017 · Coauthored by Joe Cloer & Susan Cook

I know, you finally want to dispossess your tenant this month, because right now you have had enough foolishness. You do not want to hear about more problems, more reasons why there is only part of the rent, none of the rent, and how that is not really their dog/cat/chicken(s) or subtenant. Yeah, I know. However, stop right now and think back to how many times you have already allowed that tenant to slide. Think about each month you have allowed infractions, shortfalls in the rent, unpaid utilities, and any other breaches in your lease.

Now, think about this: your lease is a contract. Your lease does in fact fall under Landlord/Tenant law, but it is also covered by Contract law. If you are habitually letting your tenant slide about rent and late fees and then accepting the money late over and over, you are altering your contract, maybe even creating a breach in that contract. Yep. You can break your own contract by habitually not adhering to it, and that means that you may no longer be able to enforce your lease — and by that I mean exercise the right to dispossess tenants because they aren’t following the contract.

Here is what happened. Last month, despite having a contract which states clearly that my owners can refuse late rent and evict, and despite the tenant agreeing to that in the contract, we could not evict this tenant. Despite Landlord/Tenant law that clearly states an owner is only required to accept late rent once in any calendar year, this judge decided that the owners’ behavior of regularly accepting late rent created a breach of their own contract, and they could no longer enforce this contract and dispossess him for continually being late to pay. That’s right. Owner actions negated their contract, and the tenant walked out of court — not only remaining a tenant, but a tenant whom the owners had to reimburse for his court costs. The judge told all of us that the lease is henceforth going to be strictly enforced. Which means we must demand payment immediately when the tenant does not pay, file the dispossessory, and go to court to collect and/or evict him.

Now, as a property manager, I am advising all my owners that we must notify all tenants that leases will be strictly enforced, no exceptions. We must give everyone notice that we will now follow the lease and then — do it. It is a bit sad when I consider that means normally good tenants cannot have an occasional slip-up without getting a demand letter and maybe a court date, because my owner can no longer be merciful in emergencies. But now, we have no choice if we want to be able to evict when this person cannot come through with the rent.

Lease vs. Actions. Actions may trump the contract and subvert Landlord/Tenant law; it depends on the judge; it depends on the county; it depends on many things. But learn from my experience in Cobb County. Enforce your lease; make your actions consistent if you want to evict without a problem.