Noah Patel
Non-payment of rent is a common issue faced by landlords, and there are several legal options available to them. Before pursuing legal action, landlords should issue a written notice to the tenant, specifying the amount owed and the number of days they have to pay before legal proceedings are initiated. If the tenant does not respond to the notice, landlords can file an eviction lawsuit, seeking possession of the property and unpaid rent. In court, landlords must present their case, including evidence of any late rent notices served and communication with the tenant. Tenants have the opportunity to defend themselves and present their side of the story. If the court rules in favor of the landlord, they are granted possession of the property and, in some cases, the tenant is ordered to pay the unpaid rent. Landlords can also pursue unpaid rent through small claims court, a collections agency, or by selling the debt to a collections company.
| Characteristics | Values |
|---|---|
| Who can file the case? | Landlord |
| Who can be sued? | Tenant |
| What is the purpose of the case? | To collect unpaid rent and/or regain possession of the property |
| What is required before filing the case? | A written demand for overdue rent and a warning of eviction must be delivered to the tenant at least 14 days before the court case is started. |
| What are the requirements for the demand? | It must include the amount of rent to be collected, the day on which it is to be paid, and the location of the premises. |
| What is the fee for starting the case? | Varies, but there is a fee to start the case. |
| Who can represent the landlord/tenant in court? | Usually, only a lawyer can represent someone in court. However, in some cases, a non-lawyer may represent the landlord/tenant if they meet certain criteria. |
| What should the landlord do before pursuing legal action? | Assess the tenant's financial situation and consider whether a payment plan or negotiation may be a more practical solution. |
| What happens if the tenant does not show up to court? | In most cases, the landlord wins by default. |
| What happens if the landlord wins the case? | The court will award a money judgment and a judgment of possession. The money judgment permits the landlord to collect what is owed through various means, such as levying the tenant's property or going after their assets. The judgment of possession allows the landlord to request a warrant of eviction and have the tenant removed from the property. |
| What happens if the tenant pays the money judgment on time? | The judgment of possession is satisfied, and the tenant cannot be evicted. |
| Can the case be shielded from public view? | Yes, in some cases, the court can shield the case from public view. |
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What You'll Learn
Landlord's notice to tenant
If a tenant fails to pay rent, the landlord must first demand the overdue rent from the tenant and warn them that they can be evicted if they do not pay. This demand must be in writing and delivered to the tenant at least 14 days before the court case is started. The landlord must then wait for the "cure period", or the state-mandated length of time mentioned on the notice, to give the tenant time to pay the rent in full. If the tenant is a repeat offender, the notice can be made "incurable", meaning they cannot pay their rent within the timeframe to avoid eviction.
If the tenant does not pay the overdue rent, the landlord may file a nonpayment petition, or "dispossess", against the tenant in Housing Court. The landlord must fill out the necessary forms and make photocopies. They then bring the forms to the Landlord-Tenant Clerk's Office and buy an index number. The clerk will stamp the index number on the original forms and keep the Petition. The landlord must then ensure that the tenant receives a copy of the Notice of Petition and the Petition, delivered in the manner required by law.
The nonpayment petition must contain the following:
- The petitioner's interest in the premises
- The amount of rent to be collected, as well as the day on which it is to be paid
- The location of the premises
- A specific allegation as to the rent due, including any additional money due for taxes, late fees, or attorney fees
- An allegation as to the rent demand, either oral or in writing, with the option to submit a written demand and an affidavit of service to the court
- An allegation that the respondent continues to occupy the premises
After the landlord files the complaint, the court will issue a "summons". The sheriff will notify the tenant by posting the summons and complaint on the property and mailing the papers to the tenant. The tenant will be required to "answer" the landlord's complaint and "show cause" as to why the landlord's demand to repossess the property should not be granted. The trial will occur on the fifth day after the landlord files the complaint.
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Filing a nonpayment petition
A nonpayment petition is a legal action that a landlord can take against a tenant to reclaim unpaid rent and/or seek eviction. This process typically begins with the landlord demanding the overdue rent from the tenant and providing a warning of potential eviction if the rent remains unpaid. This demand must be made in writing and delivered to the tenant with a specified timeframe, which can vary by location, before the court case is initiated. For example, in New York, this notice period is at least 14 days.
To file a nonpayment petition, the landlord must complete the necessary forms, which may include a petition, notice of petition, service copies, and a postcard. These forms can often be obtained through a court clerk's office, and there may be a fee associated with initiating the case. The landlord must provide specific information in the petition, including:
- Their interest in the premises
- The type of tenancy, such as a lease or month-to-month tenancy, and when it began
- The amount of rent due and the dates for which it is owed
- Any additional money owed, such as taxes, late fees, or attorney fees, itemized separately
- Whether the demand for rent was made orally or in writing, and if in writing, providing an affidavit of service to the court
- The respondent's continued occupancy of the premises
- If the building is a multiple dwelling, the registration details, including the name and address of the managing agent
Once the forms are completed, the landlord must make photocopies and submit the originals to the court. The landlord is responsible for ensuring that the tenant receives a copy of the relevant documents, such as the notice of petition, in accordance with the law. The tenant then has the right to respond and present their defence or counterclaim before the court hearing.
It is important to note that the specific procedures and requirements for filing a nonpayment petition may vary depending on the jurisdiction, and landlords should refer to the relevant local laws and regulations.
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Court proceedings
Initiating the Case:
Before initiating court proceedings, the landlord must provide a written notice, demanding the overdue rent and warning the tenant of potential eviction if the rent remains unpaid. The duration of this notice period may differ based on local laws, but it is commonly set at 14 days. During this time, tenants are advised to seek legal counsel or consult tenant advocacy organizations to understand their rights and prepare their defence.
Filing the Case:
If the rent remains unpaid after the notice period, the landlord can proceed to file a non-payment case in the appropriate court, typically the Housing Court or the District Court in the county where the property is located. The landlord must submit relevant documents, including the Notice of Petition, Petition, and proof of service of the rent demand. The landlord may also be required to pay a filing fee, although fee waivers may be available for those who cannot afford it.
Court Hearing:
Once the case is filed, the court will notify the tenant of the court date, time, and location. Both parties will have the opportunity to present their arguments and defences before a judge. In some cases, landlords and tenants may agree to settle the matter through a stipulation, which must be approved by the judge. If no agreement is reached, the case will proceed to trial, where the judge will review evidence and sworn testimony before making a decision.
Judgment and Eviction:
If the landlord wins the case, the court may award a money judgment, allowing the landlord to collect the unpaid rent, and a judgment of possession, which permits the eviction of the tenant. Even after a judgment of possession is issued, tenants typically have a grace period (varying by location) to pay the outstanding rent and costs to avoid eviction. If the tenant fails to pay within this period, the landlord can request a warrant of eviction, authorising their removal from the property.
It is important to note that tenants have the right to defend themselves in court and can present various arguments, such as the landlord's breach of the warranty of habitability, to counter the eviction proceedings. Tenants should also be aware of their rights and ensure that proper legal procedures are followed by the landlord throughout the process.
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Judgment and eviction
In a nonpayment proceeding, the landlord claims that rent is owed. If the landlord wins, the court will award a money judgment and a judgment of possession (or 'possessory judgment'). A money judgment permits the landlord to target the tenant's assets, such as bank accounts, to collect what is owed.
A possessory judgment means that if the tenant does not pay the amount determined by the court, the landlord can request a warrant of eviction and have the tenant removed from the property. If the tenant pays the money judgment on time, they cannot be evicted. The landlord must also provide the tenant with notice of the court proceeding and an opportunity to present a defence.
In Maryland, the tenant's right of redemption (the right to stop the eviction) is not available if three or more judgments of possession for rent due and unpaid were entered against the tenant in the 12 months prior. A landlord may not refuse payment from a rental assistance program managed or funded by a county or city.
In New York, a landlord can file a nonpayment petition (or 'dispossess') against the tenant in Housing Court. The landlord must fill out the forms and make photocopies, then bring the forms to the Landlord-Tenant Clerk's Office. The petition must contain the interest of the petitioner in the premises, the amount of rent to be collected, the location of the premises, and a specific allegation as to the rent due.
If the tenant does not have a defence, the judge may decide that the landlord can have a 'judgment' against them. If the tenant does not pay their protective order payment, the judge can order penalties or sanctions, such as taking away the right to a jury trial.
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Alternative dispute resolution
When a tenant fails to pay rent, the landlord usually has to first demand the overdue rent from the tenant and warn them that they can be evicted if the rent remains unpaid. This demand must be in writing and delivered to the tenant at least 14 days before the court case is started. The landlord may then file a nonpayment petition (sometimes called a "dispossess") against the tenant in Housing Court.
However, there are alternative dispute resolution (ADR) methods that can be used to resolve non-payment of rent issues without going to court. ADR methods such as mediation and arbitration are encouraged by courts and professional bodies such as the Law Society and the Royal Institution of Chartered Surveyors (RICS).
Mediation involves a neutral third party who listens to both sides and helps them arrive at a resolution. Mediation does not lead to an imposed outcome, so there is little to lose by participating. Arbitration is similar, but the outcome is binding. Both parties must agree to arbitrate their dispute, either through a provision in the lease or rental agreement or after the dispute has arisen. The arbitrator may be agreed upon by both parties or chosen by a professional body. The result of arbitration can remain confidential, unlike court proceedings.
ADR methods can be more efficient and cost-effective than going to court, and they allow the parties involved to remain in control of the process. They can also help maintain amicable relationships between landlords and tenants. However, if ADR methods fail to resolve the dispute, court proceedings may become necessary.
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Frequently asked questions
If your tenant isn't paying rent, you must first demand the overdue rent from the tenant and warn them that they can be evicted if they don't pay. This demand must be in writing and delivered to the tenant at least 14 days before the court case is started. If the tenant does not pay the overdue rent, you may start a nonpayment case by filing court papers called a Notice of Petition and Petition.
If your landlord files a nonpayment petition against you, you will be served papers and the court will mail a notice of the court proceeding, directing you to answer the petition within 10 business days. You must answer the petition in person at the Housing Court Clerk's office, where you will be given a court date. On the court date, you will have the opportunity to present defences to a Housing Court Judge.
If your tenant doesn't pay rent, you can file an eviction lawsuit, often referred to as a complaint in forcible entry and detainer, in your local court. In court, you must present your case, including evidence of the unpaid rent and any late rent notices served. If the court rules in your favour, a judgment will be issued, granting you possession of the property and, in some cases, ordering the tenant to pay the unpaid rent.
