How To Win Your Eviction Case - Oct 2014

Terry Jessop & Bitner Newsletter

Issue 14, October 2014

A wise person once said: "Prior planning prevents poor performance." Instituting good policies and procedures can drastically decrease problems down the road, but even the best policies are worthless if they are not followed. Our firm recently won a case which underscored the importance of establishing and, more importantly, following sound policies and procedures.

Wrongful Eviction?

Our client, a landlord, was sued by a former tenant alleging he was unlawfully evicted from his apartment and that landlord stole his personal property. At the heart of the dispute was a "Notice of Intent to Vacate." The landlord's policies required vacating tenants to fill out and sign a notice stating tenant's move-out date. Consistent with the policy, the landlord required the tenant to fill out the notice in this case. After the appointed date came and went, landlord entered the premises, which were disheveled but otherwise vacant, cleaned them up and changed the locks. At trial, the tenant argued that he had not actually moved out and did not intend to vacate until a week or two after the date listed on the notice. He also tried to impose liability on the landlord for certain items which he said were missing from the premises.

Landlord Wins

The state court dismissed the tenant's case. Tenant appealed but the Utah Court of Appeals upheld the dismissal. In both instances, the landlord's adherence to its policy of obtaining a written notice from the tenant proved to be a key factor that tipped the scales in favor of the landlord.

Lessons Learned

When it comes to lease termination, the first lesson from this case is get it in writing. When a lease ends the parties should sign a written document setting forth: (i) the circumstances of the termination; (ii) the move-out date; (iii) cleaning and inspection criteria and deadlines; and (iv) the refund or other application of any pre-paid rent and the security deposit. This establishes a clear timetable and reduces the possibility of claims for wrongful entry, especially where a landlord enters the premises and locks out a tenant, believing the tenant has moved.

Second, document the condition of the premises at the inception of the lease as well as at termination. Walking through the premises with the other party provides an opportunity for inspection, documentation, and discussion about who bears the responsibility for repair or remediation. Videos and photos are invaluable for establishing the condition of the premises. Such evidence is often sufficient to prove liability for repairs, especially when the other party does not have any rebuttal evidence.

Dearly Departed

In most cases, the parties can anticipate the departure of a tenant, but sometimes tenants just abandon the premises and their personal property. In that case, a landlord is required to safeguard the tenant's personal property for thirty days. Many times it appears the tenant left only garbage. However, rather than make assumptions, it is best to inventory the property left behind to protect against claims of damage or theft. In our case, the courts found the tenant's claims of missing property less than credible. But in classic he-said/she-said cases, credibility is always up for grabs. Fortify your position with documentary evidence.

If you find yourself in a lease termination quandary, give us a call. We can help.

©Terry Jessop & Bitner October 2014