Tenant not paying rent, want possession of property

We have a lease agreement with an older relative who has never paid rent. He was given a low rent agreement to be able to afford it, but he took advantage. We allowed it because his wife was terminally ill and we didn't want to put them on the street. She passed away eight months ago and he still continues to avoid rent. Now, he wants to move another relative in with him, who is another able-bodied, rent-avoiding deadbeat. We are tired of being taken advantage of and we simply want to gain possession of the property to rent it for its real value. Are we required to ask for back due rent in an eviction claim, or can we simply ask for possession of the property? Since we haven't enforced rent for a couple of years now, would it be likely that a judge would say we shouldn't ask for it now and would he be allowed to stay rent-free until the end of the lease (5 months remaining)? This property is in the state of Indiana.

Thanks for any help.

[OHlandlord]

Since you have not enforced rent until now, you need to show that you will no longer allow this to continue. Send a letter to the tenant notifying him that while you allowed him to ignore his rent obligations while his wife was terminally ill, you can no longer allow this to continue. Remind him that you have a lease and that you expect rent paid in full on the first on the month as required by your signed contract. Let him know that you will pursue legal options if he fails to fulfill his obligations under the terms of the lease. Also, let him know that he cannot move any unauthorized occupants into the premises. Mail this by certified mail, return receipt requested and keep a copy. Mail another copy by US mail, with proof of mailing. Keep the receipts that are retuirned, as well as any letter that is refused (keep it unopned for court purposes). When he does not pay rent on the first, serve the pay or quit notice as required by your state law. (I belive it is a 10 day notice - the courthouse can give you a copy of this form and give you the correct method of service). If he still does not pay up, then file for eviction with the court. The judge may not allow you to evict, but even then, you will be setting a precedent with the court showing that you want your rent. If he doesn't pay the next month, repeat the pay or quit & eviction filings. The court will already have it on record that you asked for rent to be paid and should allow the eviction. Just filing the pay or quit should show the relative that you are serious. 60 days before the lease expires, give him notice that you will not renew his lease and that he needs to be moved out of the unit and return the keys by xx/xx/08 date. Keep a copy of this also.

OHLandlord, thank you very much for your reply. Because this is a relative and there is much more to the story, we have been under much stress and wish to end the relatioships and have our property returned as soon as possible. It sounds like your suggestion is the fastest path. Now that I have found this forum, I have read numerous threads where you have provided advice and I thank you for those too. We have printed a lot of threads to use in constructing a better lease for our next tenants.

One more question for you - the property in question was owned by my spouse prior to our marriage, but was not used as a rental until after our marriage. We have never worried about putting my name on the property (it is completely paid for). My spouse sometimes travels significantly for work, so if we get an eviction date and it is in conflict with work travel schedules, would I be able to appear in court as an "agent" of the landlord, or would my name need to be on the lease or on the deed as an owner first?

[OHlandlord]

Good question. The answer depends on your state and the court in your area. In some areas, the manager (you) of the property can do an eviction with a letter of agreement from the owner. In other states, like here in OH, your name has to be on the actual deed to evict someone. (We have to actually show the deed to file for eviction here.) Call the clerk of court for your county and ask them to be sure. If they do not allow it, you would have to hire an attorney to do the actual eviction if your husband will be out of town.

There are two ways to change the deed itself, if your usband is agreeable. One way (in some areas it is allowed) is to quit claim the property from himself to both of you. It is a simple form (one page) that you can get a blank form for cheaply, fill it out, have it notrized and recorded at the courthouse. The other is to see an attorney and have the deed changed. It would cost a couple hundred dollars and possibly one day to do. Again, have it recorded at the courthouse. Both would put your name on the deed so you could do an eviction if he were unavailable. Having the deed changed may be a good idea. If something were to happen to your husband, the property would likely have to go through probate before it was awarded to you. That can take months. If your name is already on it, it takes only days.

OHLandlord, you might like this - we did what you suggested and sent a letter to our relative tenant saying that we could no longer allow him to not pay rent and that we expected to receive the rent per our agreement on the first of the month. We also explained that if he didn't start paying and if he moved someone else in to the property, it would be a breach of contract and we would seek and eviction. He received that letter. I really didn't expect to hear from him, nor get any money from him. In his twisted state of mind, he feels we owe him this place to live without paying. So he calls, very upset, and says he is tired of us putting unreasonable demands on him, that we are rude because we don't want our other "needy" relative to move in, and we have cost him money because he had to pay an attorney $300 to protect himself from us (?????). Without you knowing us, please assume that I am telling the truth that we have kept the property in good, livable condition, that we absolutely have a contract with a rent stated and a clause for only one tenant. Other than the fact that we hadn't made him pay rent up to this point, what could he have possibly retained an attorney for when we haven't even filed anything against him in court? Does $300 sound right for an attorney retainer for an eviction matter? That sounds low to me, so maybe he is bluffing. I hate that it has come to a matter of going to court, especially being family, but I feel that we now have to sink the money into an attorney if he really has taken some action against us.... thoughts?

[OHlandlord]

Honestly, this sounds absolutely normal to me! Even if the tenant is not a relative, many develop an entitlement attitude after having lived in a place for a while. They believe you owe them something. The longer they get away with things, the deeper ingrained this attitude becomes. It happens especially with younger tenants and those who have lived in a unit for many years. It is normal.

$300 for an initial consultation of an hour sounds right. (It's probably not a retainer fee.) The attorney no doubt listened to his side of things and gave him some advice, then told him to call back if you filed anything. Basically the attorney just listened to him and quoted the law. It is not money well spent on his part. He could have used that to pay his rent.

Do not accept further calls from this tenant. Allow the machine to pick up his calls. Requesting the rent you are owed is not an unreasonable demand. You allowed him to ignore his obligations while his wife was so ill. Rudeness has nothing to do with business. The other relative is not on the lease and has no right to move in. Keep silent until the 1st of the month. If no rent, post a Late Rent Notice on his door on the 2nd and note any late fee that is written into the lease. Check your state law to see if there is a mandated grace period, also check the lease. If none, serve a pay or quit notice by legal method (the clerk of court can give you this form and the correct method to serve it) very soon after this. If he still refuses to pay, file for eviction once the pay or quit expires. (The clerk can also tell you when it expires if you tell her the day you are serving it - most P or Q notices do not count day for day.) Perhaps this will be a wake up call for him. There are no free rides in life. He can't expect to live rent free forever.

Another issue has come up on this silly drama - my relative just had an attorney send us a letter claiming he has part ownership in the property and he wants us to sell the property and give him his money back. What really happened was this relative was almost bankrupt 25 years ago and my spouse committed to paying off relative's property in return for the equity when the property was sold. This was done by contract through an attorney, but the contract is missing. We do have a letter from the said attorney prior to the contract outlining the possible options for the loan. We have years worth of returned check's from my spouse to the relative totaling tens of thousands of dollars. The relative sold the property in 2002 and wrote a very large check to my spouse, as was the arrangement for recovering the equity in the property. That check was used to pay off the mortgage of the rental property in question. We also, as said before, have the deed to the property in my spouse's name, lease agreements that relative has signed since moving in, and proof of the mortgage we paid prior to receiving the check. The relative's name has NEVER been associated with this property.

Our attorney said that there shouldn't be any problem in retaining ownership because "all transactions in real estate must be in writing". What our attorney was saying was that since there is no written contract between us and the relative showing that we promised a place to live as a result of the large check written, coming to court and saying there was a verbal agreement would not fly.

OHLandlord, do you agree that this is true that all things in real estate must be in writing? I am very upset that after years of supporting this relative and giving him and some other freeloaders a free ride, this is the thanks we get by him trying to bilk us out of our rightful ownership of this property.

Any comments or advice appreciated

[OHlandlord]

I would have your attorney send a nice letter back to this relative's attorney stating that the relative took out a loan on the property located at XXXXX (relative's property address) back in XXXX (year) through a contract drawn up by XXXXX (attorney's name). This contract designated a loan from your husband to the relative to pay the mortgage off on the property at this same address. And that the property was sold in 2002 and your relative repaid the loan to your husband at that time by lump sum payment as witnessed by the check from that relative's acccount. Your husband used the loan repayment from the relative's property to pay off the mortgage on his rental investment property. This money received from the relative was repayment from a loan on the relative's property and was not an assignment of interest nor a loan on this rental property located at (his current address). You have never written or signed any deed or contract to assign any interest in your rental property to this relative. There is no life estate promised or agreed to in writing to allow this relative to live at the rental property for life and you do, in fact, have a signed lease with the relative to make rent payments to you on a monthly basis. I would further ask the attorney to write something to the effect that although you have allowed him to stay rent free in the time of hardship with his wife's terminal illness, since she has passed you can no longer continue to do this and must enforce the signed lease that you have with this relative.

Run something like this by your attorney (although he may prefer to ignore the relative's attorney and wait until he files a court case against you). Your attorney is correct. Real estate transactions (sales or assignment of interest in a house) must be in writing. Since you have an atyoreny, I would ask him to darft a letter to your tenant requiring him to start paying rent. If he fails to do so, have your attoreny start to evict. Good luck.

Thank you - I was thinking along the lines of not responding to the attorney's letter at all and moving forward with the eviction. Of course, I will wait for my attorney's advice.

Do you have any ballpark idea what it would cost the relative in attorney's fees if he decided to pursue this idea that he has an interest in the property? Since he has never paid rent, I assume that his funds are limited. I can't even imagine what he would charge us with? Would it be fraud? I know my attorney required a 4 figure retainer just when we were talking with him about the eviction. To move forward with trying to prove his ownership in our property, I would think would take quite a bit of time from the attorney. I know you can't be sure, but if you could give your estimate of a range, that would be interesting.

[OHlandlord]

My guess is that he is going to try to claim a life estate (you promised him to live free for life there) or to use the fact that you used his (loan repayment) check to pay off the rental mortgage as "proof" of making a loan or investment in your property. The fact that he has a lease written and signed will eliminate the first issue, if you can find the paperwork for the loan you made him (contact that lawyer, he may have a copy in his files) will eliminate the second (plus the fact that there is no real estate contract to show any interest in the property -no loan, mortgage, or deed). For an attorney to handle something like this, I would expect the cheapest lawyer would want at least several hundred dollars per hour. I doubt any attorney would take this for a fraction of the interest in the property if he were to win. They'd want paid up front. BTW, most tenants that threaten to sue never do!

You may want an eviction specialist to do the eviction (instead of a real estate attorney). There are atorneys that do nothing but evictions, and do them for a flat fee. Call around or ask a LL's association who they use. They will be cheaper.