Tenant served notice may not vacate timely
September 10, 2012 7:26 PM   Subscribe

You are not my lawyer. This is not legal advice. But what will I likely have to do next?

This is in Louisiana, a state that is generally not friendly to tenants.

I sold the property I live in. (I am not the owner but have power of attorney.) I gave my tenant 30 days' notice to vacate on August 7. I left a notarized note in his mailbox, along with another copy. (Couldn't effectively post to the door, so went with the mailbox.) I also notified him by voicemail and spoke with him. Last week, post-hurricane, I told him he could have an extra few days but needs to be out by this Friday morning.

Tenant is now saying he will "do what he can" but "isn't sure he can be out by then." Buyer is not going to extend or leaseback, period. What is my next step here? (Yes, I am talking to folks in the A.M. but would just like a little more info now.) Do I just file in court this week? Is that the next step?
posted by knock my smock and i'll clean your clock to Law & Government (20 answers total)
Your tenant has not been "served notice" - that term is used for lawsuits and requires actually serving notice (either via a process server or certified mail).

It's to your advantage to get the eviction process started as soon as possible. That way, if you end up resolving your issue with your tenant, you can just settle the case, and if your tenant is not cooperative, you get it taken care of that much more quickly.

You can try to do this yourself, but many lawyers representing landlords will do evictions on a flat-rate basis, which seems reasonable in your case given that you don't sound like a professional landlord. Since you are selling the property, it may be valuable to preserve your sanity for the real estate transaction rather than the eviction process.
posted by saeculorum at 7:39 PM on September 10, 2012 [1 favorite]

I missed the bit about him being out by Friday morning. This is likely obvious, but it should be noted that you can't start the eviction process via a Notice to Quit until Friday morning (preferably a bit later, as "morning" is not a well-defined legal term).
posted by saeculorum at 7:40 PM on September 10, 2012

This is very helpful. Will contact bar referral service tomorrow.
posted by knock my smock and i'll clean your clock at 7:43 PM on September 10, 2012

If your tenant has a lease it might prevail through the sale of the property. iANAL
posted by HuronBob at 7:49 PM on September 10, 2012

First of all, are you certain that the sale of the property terminates the lease? That's assuming the tenant actually has a lease, of course, and that it hasn't expired. In most (all?) states, selling the building does not automatically terminate a tenant's lease (except sometimes through foreclosure actions, but that's a different situation), and I don't see from some quick Googling any indication that Louisiana is any different. The lease form, if any, may well include a provision describing what happens if the building is sold. If there's no written lease, your lawyer is going to want to know a lot more about the agreement you had with the tenant to figure out what rules apply to the situation.
posted by zachlipton at 7:52 PM on September 10, 2012

The month-to-month tenant doesn't have a lease. I don't know that there's ever been one. I don't have an agreement with the tenant. It's my brother's house; tenant has been here since before Bro purchased the property; Bro is in prison and I am his P.O.A.
posted by knock my smock and i'll clean your clock at 8:00 PM on September 10, 2012

I gave him 30-day notice to vacate, which I'm allowed to do for any reason, and he didn't contest that. So the sale of the property isn't really the point. It's that BECAUSE of the sale, I need him to leave when I asked him to.
posted by knock my smock and i'll clean your clock at 8:02 PM on September 10, 2012

"If the duration of the lease is
not stated in the agreement, then it is presumed by law to
be month-to-month. The tenant or the landlord may
terminate or change the terms of the lease with ten (10)
days written notice before the end of the month." --LA Att'y General.

Not trying to threadsit here. But want to clarify, this is not about whether I had grounds to terminate the tenancy. I did. Irrelevant to home sale.
posted by knock my smock and i'll clean your clock at 8:05 PM on September 10, 2012

Writ of Possession (which you need to get from the court). I'm not your lawyer.
posted by lalala1234 at 8:24 PM on September 10, 2012

Ok great. Just wanted to point something out that you may not have been aware of. Glad that part is ok, and good luck with the rest of the process.
posted by zachlipton at 8:25 PM on September 10, 2012

Check with the lawyer. I think this becomes the new owner's direct problem, as you no longer own the property.

The new owner may be able to recoup losses from you, though, if this drags out.

I say this because as the non-owner, you might not have legal standing against your former tenant in court.

Can you negotiate with this a-hole? Pay for a moving company or some such thing? That might be cheaper and quicker, depending.

Again. Check with a lawyer.
posted by jbenben at 11:25 PM on September 10, 2012 [2 favorites]

Tenant is now saying he will "do what he can" but "isn't sure he can be out by then." Buyer is not going to extend or leaseback, period.

Explain that this is one of those situations where the sheriff is going to be putting his stuff on the sidewalk.

Suspect he hasn't lined up a new place to live.

Call a lawyer now, its your duty as a poa holder. You can't half-ass this. You're not allowed.
posted by Ironmouth at 11:56 PM on September 10, 2012 [1 favorite]

Seriously your next step is to explain to the tenant that this is not negotiable.
posted by wilful at 12:07 AM on September 11, 2012 [1 favorite]

Youl need a lawyer.

The way I hear it, these things are often resolved in practice is by someone greasing the wheels (I.e. bribing the tenant to leave).
posted by J. Wilson at 4:27 AM on September 11, 2012

J. Wilson alluded to what may be the practical answer: offer him a move-out bonus if he vacates, leaves the premises in good condition, and turns in the keys.
posted by yclipse at 4:41 AM on September 11, 2012

Purchased a home recently and this was disturbingly common now, according to the realtor. It isn't uncommon, and is just as disastrous as you fear. Staying ahead of it is the right idea. Call a lawyer asap.
posted by jwells at 5:19 AM on September 11, 2012

ianal. I've owned 11 rental properties in La.
With one property a tenant refused to leave (or pay rent) and the sheriff did put the tenant's things on the curb...and I walked in +changed the locks.
This particular property was in Lafayette Parish (I don't think the law changes parish-to-parish though.)
I was required to pay a process server, OR a deputy, OR nail the paper to the door myself.
I brought a friend, a camera and banged those papers on.
Later, that period of 30 days or whatever, I showed up to meet the sheriff's deputy at the property.
When no one responded to our knocks the deputy had me open the door (iirc the other option is for the deputy to force it.)
The tenant was there and told the deputy he HAD NOT received the papers.
I showed my pics of the papers nailed on the door + the tenant retrieving them (the tenant retrieved them after my friend drove around the corner...I took a pic. BUT I've been told the picture of retrieval isn't necessary.)
The deputy started hauling the guy's stuff out.

When you say you "left a notarized note in his mailbox" that isn't an option afaik...also I've been told nothing but USPS mail is to be put in USPS boxes. Now you can send stuff thru the USPS and count on it as being somewhat valid IF the tenant signs for it. I haven't had any luck with that as the tenant just does not sign.
pretty stressful stuff.
posted by Twist at 5:42 AM on September 11, 2012

Given that the deadline is this Friday the most effective approach might be to bribe him. You can offer him an amount of money that is huge for him but low relative to the pain of losing the sale.

Fair? No. Effective? Yes.
posted by alms at 2:10 PM on September 11, 2012

Bribed him. It worked.
posted by knock my smock and i'll clean your clock at 10:15 AM on September 14, 2012 [1 favorite]

Congratulations, and good luck with the sale!
posted by alms at 10:41 AM on September 14, 2012

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