Possession of property by a tenant protects their property right. On the other hand, a property owner’s right to remove a tenant depends on the type of tenancy, as each tenancy type enjoys legal rights distinct from the others. Therefore, determining the type of tenancy your tenant could enjoy is the first step in removing a tenant from a property you purchased.
You must initiate this step in the time set aside for due diligence before the closure of escrow. Doing so will ensure that the tenancies at the new property you plan to purchase, are in line with your expectations. Reviewing leases and gaining knowledge about the nature of tenancies without written agreements, plays a critical part in the due diligence process.
Tenant Estoppel Certificate
It would be quite helpful for potential purchasers if they were to ask for and obtain a tenant estoppel certificate during the due diligence before escrow. This certificate is essentially a statement in which the tenant may describe the terms of their tenancy as they believe it, and any issues that they deem moot or unresolved.
Having recorded their views and statements in this certificate, the tenant is bound by its contents. Once the new owner completes the purchase of the property and takes possession, this certificate precludes any claim contrary to the earlier statement by the tenant.
Types of Tenants and Legal Procedures to Remove Them
Once you have the terms as claimed by the tenants during the due diligence period, you have the leverage to negotiate. You may be able to get any tenancies terminated to ensure that you have a vacant property upon close.
If that is not doable, removal of a tenant after the closure of escrow will depend upon the type of tenancy they have. Given below are the types of tenancies and the course of action you must follow for their removal:
A tenant who continues to stay in a property even after the lease expires. The law regards a holdover tenant as a trespasser. In case of a property owner continues to accept rent from such a tenant, they can remain on the property legally.
Consequently, the length of a holdover tenant’s stay depends on court rulings based on state laws. The holdover tenant is a trespasser in the eyes of law if the property owner refuses to accept further rent. This creates the grounds for the removal of the tenant if they do not move out voluntarily.
To legally remove a holdover tenant, you must promptly file an unlawful detainer with no need for any written notice preceding it. You must also keep in mind that accepting rent may unintentionally establish a tenancy.
To avoid holdover tenants, property owners need to include a clause declaring what happens at the expiration of the lease agreement.
A fixed-term tenancy agreement entitles a tenant to remain for the term mentioned in the lease. It can be quite a difficult task to remove a fixed-term tenant unless there is a termination agreement lease.
Fixed-term tenancies are popular with the property owners as it guarantees a steady fixed income and takes away the stress to find new tenants. It also allows the tenants to be aware of their annual living expenses, and budget accordingly.
On the other hand, a fixed-term tenancy lease has minimum provisions for change or amendment. Both sides need not issue a notice letter, but it is good practice to do so when the lease is about to expire.
One of the ways to remove a fixed-term tenant is to offer monetary compensation. Or wait for the tenant to breach a term of the agreement and terminate the lease based on that.
Tenancy at Will
A tenancy at will, also called an estate at will is a month-to-month rental agreement. In a tenancy at will agreement, a tenant may not sign a contract with a specific termination date for the tenancy. Under such an agreement, both the property owner and the tenant are at liberty to terminate the lease agreement at any time they choose to.
Often, the property owner and the tenant reach a verbal agreement instead of a written one. Even if there is a written agreement, it might contain the amount of rent and other terms of the lease agreement, and not the tenancy period.
Removal of such a tenant requires sending a 30- or 60-day notice to terminate the tenancy. If the tenant does not vacate the property and hand over possession at the expiry of the notice period, the property owner can legally press for their removal with an unlawful detainer filing.
The Eviction Process
If the eviction notice sent by you fails to remove the tenant, you need to file an eviction lawsuit in court. This involves serving a copy of the complaint and the summons to the tenant.
If the court ruling is in your favor, it will issue you a possession order for the property. You will then need to approach the local sheriff to remove the tenant from the property on payment of a certain fee.
The eviction process is not simple, but you must follow the legal stipulations to boost your chances of removing the tenant from the property you purchased.
Work with a Skilled Real Estate Lawyer in Maryland
At Evans Law, our experienced real estate lawyers can help you in the due diligence process and guide you through the complicated and daunting tenancy laws. To avail of our expertise in resolving sale and purchase disputes and problems with tenants before or after a purchase, call us today at (410) 431-2599 to schedule a free consultation.