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Lecture Topics ARM May meeting
- Overview of Eviction Process
- Notices
- Opportunity to Cure
- Non-payment of rent - Three Day Notice
- Other Breach - 14/30 Day
Note some judges prefer a second notice on the 15th day be issued. Notice of Termination, Failure to Cure
- Straight (no right to cure)
- 30 Day notice (prior to the 1st of the month) applies to MONTH to MONTH tenancies only.
- 14 Day notice after notice of breach (14/30 day) within last six months
- Holdover
- If tenant remains in possession of premises without permission
- Watch waiver of notice
- Eviction Process
- File Petition
- Personal and residential service (if money judgment is important)
- Mail and Posting Service (if money judgment is not important)
- Obtain Service (sheriff or constable)
- If no service, must reschedule trial
- Obtain service by Substitute Service
- Trial (10 to 14 days)
- Writ of Restitution (lock out)
- Sheriff and Constable prefer moveouts on Mondays
- Sheriff and Constable to not remain on premises during lock change
- Tenant's personal property remaining in premises must be treated according to Disposition of Personal Property Landlord and Tenant Act
- Trial on Rent and Damages Issues (depending on service)
- What to Do in case of Fire
- Rule under Common Law
- Change under URLTA
- Terminating the rental Agreement
- Rent, Security Deposit and "Damages"
- Charging for "Usual Wear and Tear" - When is a clean carpet not a clean carpet?
- Standard Practice among Landlords
- What is Wear and Tear?
- How can we Improve our chances?
- Making repairs and tenant remedies.
- What repairs have to be made
- What repairs can "wait"
- What a tenant can and can't do
- Serious and Clear Danger or Incurrable Breach Evictions
- Without Lease Provision or Addendum
- General breach peace and quiet of neighbors or of lease or rule and regulation.
- 14/30 Day notice
- Note this is curable, ie. if no further breaches occur, default is cured, and tenant may remain in the premises.
- Some attorneys suggest that a second breach within the 14 days is a separate breach within six months and thus a 14 day notice with no right to cure may be issued following the issuance of the 14/30 day
- Lease may attempt to make a default "incurable" but not tested in Lancaster Co. Courts.
- Eviction
- With Lease Provision or Addendum
- Breach of provision results in "voiding" of lease
- Three day notice to Quit
- Eviction (similar process but different statute)
- LB116 Serious and Clear Danger introduced by Senator Quandahl 1/4/2001
- Tenant who creates a serious and clear danger, breaches the rental agreement
- Written notice to vacate within 3 days
- No right to cure
- If holds over landlord must file eviction
- Tenant may contest the termination at trial (ie. is it a serious and clear danger)
- Serious and Clear Danger Defined
- Physical assualt or threat
- Illegal use of firearm or other weapon or threat
- Presence of controlled substance by tenant or one with permission on the premises
- Compare to Public Housing Authroities provision
- Three Day notice, no hearing
- Grounds include:
- Engaging in any drug related or violent criminal activity
- Activity which threatens the health, safety or peaceful enjoyment of other residents or agency employees
- Physical assault or threat
- Illegal use of firearm or other weapon or threat
- Possession of a controlled substance
- Tenant may be evicted if any of these persons committs grounds
- Resident or any member of resident's household
- Any guest or other person under resident's control
- Any person on premises with resident's consent
- Eviction after holdover
Please contact me (beran@aol.com) for more information.
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