Lay groundwork for an amicable eviction

DEAR BENNY: We own and live in a small (four-unit) apartment building.  One of the tenants stopped paying rent in November of last year.  Because she had lost her job, she asked us to bear with her until she got back on her feet.  Because she is a long time tenant (13 years) and was always responsible, and because of the very severe winter we have been experiencing, we didn’t start any eviction procedure.  She is in her early 50s with very limited job skills and no other financial resources.  She has been trying to sell the few possessions she owns. We know she is unable to pay and is not purposely avoiding us.

Financially, however, we are no longer able to allow her to remain in the apartment. My question is: Can we start moving her things in one room and start renovating the apartment or is a legal eviction the only way to proceed? – Margarete

DEAR MARGARETE: I don’t profess to know the landlord-tenant laws in all fifty states, but I suspect that they are all the same regarding the eviction process. It is my understanding that unless you reach an amicable agreement with a tenant about moving out, you will have to go to court to get a court order to evict her.

And even if you reach agreement with the tenant, there are potential problems. The tenant can come back and say, “I did not have an attorney to assist me, and the landlord forced me to sign. She threatened to lock me out unless I signed the agreement.”

If you want to have a written agreement with your tenant, that document should at the very least state: “The tenant has been given the opportunity to have legal counsel review this agreement.” At least, this is a defense should the tenant come back later and file suit against you.

One other way to protect yourself is to offer the tenant some money. Many times, I have negotiated (on behalf of a landlord) a sliding scale; in other words, “if you move out in 30 days, I will give you XX dollars. But if you move out in 60 days, I will give you less dollars.” And under no circumstances should you give the tenant all of the money up front. I have been in many situations where the tenant gets the money, and then decides not to move out.

The best proof that the tenant has vacated is when you get all of the keys.

DEAR BENNY: If an elderly relative, who lives across the country from me, dies and leaves me (her only living relative) her home and possessions, I would not, due to health issues, be able to travel that distance to handle whatever is required of me. How then would that be handled? – Linda

DEAR LINDA: Let me break your question into two parts. First, since property is involved, in most cases (and in most states) some form of probate proceeding will be necessary. You should be able to find a probate attorney from the local bar association where the property is located. Alternatively, the court can appoint an attorney to handle the probate, and you will not have to travel.

The second part is when you are the owner of the property. Unless you want to be a landlord, you should consult a local real estate broker and consider selling the property. In fact, if your relative had lots of debt, the probate court might have to sell it anyway to satisfy all obligations, and you would get whatever is left of the sales proceeds.

As to the personal belongings, you can arrange to have someone pack everything up and ship it to you. Of course, you may not want everything. One possible solution: Have someone photograph everything and send you the pictures; you decide what you want, and those items can be shipped. The rest can be given to a worthwhile charity.

Benny Kass is a practicing attorney in Washington, D.C. and in Maryland. He is not providing specific legal or financial advice to any reader. He wants readers to e-mail him, but cannot guarantee a personal response. He can be reached at: [email protected].