Landlordís Remedies for Nonpayment of Rent
Although a landlord can evict a tenant for failing to pay the rent, eviction is an extreme option. The landlord has other remedies available that are less costly and contentious to convince the tenant to pay rent.
The tenant is commonly charged for paying rent late. The late fee must be included in the lease agreement or the landlord cannot demand it. Generally, the late fee is a daily charge or a percentage of the rent amount.
TIP: If the management office is not open, you will still be charged a fee for every day you are late, even if it is not your fault that you are unable to deliver the rent payment.
Demand in advance
Leases typically allow the landlord to accelerate the rent when the tenant is in default. Failure to pay rent is a defaultóa provision of the lease has been broken. The landlord now has the right to demand all the rent due for the remainder of the lease. If you have a $500 per month apartment and fail to pay the rent on time with 4 months left on the lease, the landlord can demand $2,000.
Landlords may change the locks on the tenantís rental unit for nonpayment of rent. Laws permit lockouts if the landlord follows certain procedures. Most often, the landlord must:
- notify the tenant in advance that the locks are going to be changed;
- leave a notice telling the tenant where the new keys may be accessed; and
- make the new keys accessible 24 hours a day.
The tenant can still occupy the premises; however, she does not have possession of a key. Obviously, the inconvenience to the tenant is the landlordís bargaining chip to get the tenant to pay the rent she owes.
My landlord has changed the locks to my apartment. Have I been evicted?
No. A lockout is not an eviction. You are still allowed to enter your apartment, and the landlord has to give you the new key as well. The landlordís motive is to get you to pay delinquent rent rather than evict you.
My landlord locked me out of my apartment and refused to give me a new key since the lease says I am not entitled to one. Is this legal?
No. Laws pertaining to lockouts generally make any lease provisions that change the legal requirements of a lockout (such as requiring the tenant to be given a new key) void and unenforceable. Although the lease might say that the landlord does not have to give you a key, the law requires him to do so.
What can I do if my landlord refuses to give me the new keys to my apartment after he changed the locks?
You can file a court action requesting a "writ of reentry." The writ orders the landlord to give you a key immediately and allow you to reenter the apartment. You file the request in court, the judge issues the writ and the sheriffís office serves the landlord with it. Once the landlord has been served, he must comply with the writ or risk being in contempt of court.
TIP: There is a filing fee as well as a fee to have the landlord served with the writ. If you cannot pay the fees, ask the court clerk for a "pauperís affidavit." The judge can order the writ to be served without a fee if he approves the affidavit.
Interrupting the tenantís utilities is illegal unless the rent covers all or a part of the utility payments. For example, if the rent payment also goes toward water service, the landlord may shut off the water because the rent (and the water service) has not been paid.
My electricity has been turned off because I am late paying the rent. Is this legal?
Under no circumstances can a landlord interfere with the utilities that you are directly paying. For instance, if you pay for your electrical service separately from the rent, and the landlord interrupts the service, he is committing a criminal act and you have the right to go to a small claims court to obtain an order requiring the landlord to restore the service. Additionally, you can ask the court for an order terminating the lease agreement and your attorneyís fee.
However, if you are in an "all bills paid" lease agreement where your rent includes utility payments, the landlord may have the right to turn off your utilities for nonpaymentóthis depends on local law. Even in this situation, the landlord may be prohibited from shutting off electricity and other utilities in extreme heat and cold. He may also be prohibited from shutting off electricity if you have verifiable health issues or needs. In either case, do not hesitate to call a health or building inspector if your health is endangered and explain the situation.
The landlord is not paying the electric bill in my "all bills paid" apartment complex. What are the tenantsí options?
The tenants can pay the electric company and deduct the payment from rent; however, the best option is to terminate the lease. Laws generally allow tenants to terminate a lease within 30 days of receiving notice from the utility company of a future shutoff, or notice of an actual shutoff, whichever is sooner.
I live in a building divided into four apartments and the tenants split the utility payments. Can our landlord shut off the natural gas heating if one of us does not pay the rent?
No. If the tenants of the building are paying the utility bill separately from their rent payment, your landlord does not have the right to shut off the gas connection. He can only shut off the connection for nonpayment of a tenantís separate utility bill.
SIDEBAR: Laws do not allow electricity to be turned off in any circumstances when the temperature is below freezing or a heat advisory is in effect. Additionally, landlords cannot disconnect or shut off power to a unit rented by tenant who will become seriously ill as a result.
The law allows a landlord to take possession of a tenantís property and sell it to cover rent in certain situations. The landlord has the ability to take the property because he has a landlordís lien. The lien is a provision in the lease that makes all of the tenantís property subject to sale if the rent is not paid. Because the landlordís lien is part of the lease agreement, a court order is not necessary.
SIDEBAR: Laws require the landlordís lien to be printed in large bold-faced letters in the lease. If it is not, it may not be enforceable against the tenant.
Some property is exempt from the landlordís lien and cannot be taken and sold for rent. Depending on law of the state where the landlord is attempting to enforce his lien, he may not take:
- tools, apparatus or books of a trade or profession
- a family library
- family portraits and pictures
- beds and bedding
- kitchen furniture and utensils
- medicine and medical supplies
- motor vehicles
- agricultural implements
- children's toys not commonly used by adults
- goods that the landlord knows are owned by a person other than the tenant or an occupant
- goods that the landlord knows are subject to another creditorís lien
Seizure of Property. The lien authorizes the landlord to take possession of the tenantís property only if he can do so peacefully. He may not break down the door, threaten the tenant or be disruptive when seizing the property. The landlord is prohibited from "breaching the peace" to enforce his lien.
Notice of Seizure. The landlord must leave a notice with the tenant that the property has been taken for nonpayment of rent along with an itemized list of the property.
The notice must state:
- the amount of past-due rent;
- the name, address and telephone number of the person the tenant may contact regarding the amount owed;
- that the property will be promptly returned when the past due rent is paid in full; and
- the fee for packing, removing and/or storing the property (this fee must be part of the lease agreement or the landlord is not entitled to collect).
Sale of Tenantís Property. If the lease provides that the tenantís property may be sold for past-due rent, the landlord may go forward with a sale. However, the tenant must be notified of the date and time of the sale before it takes place. Laws typically require 30 daysí notice. The property is auctioned off to the highest bidder. After the past-due rent is paid, any remaining money must be sent to the tenant.
SIDEBAR: When a tenant abandons the property, the landlord may remove all of the items in the unit. Under this situation, the landlord does not need a court order or a specific provision in the lease authorizing the removal and sale of the tenantís property.
My landlord is threatening to enforce his landlordís lien and seize my property for nonpayment of rent. If there is nothing in the lease about this option, can he take my property?
No. The lease must specifically provide for the landlord to enforce a lien on your property for nonpayment of rent. Laws require that the provision allowing the landlord to enter and seize your property be underlined or printed in conspicuous bold print in order to be enforceable.
If the tenant fails to pay rent, the landlord must act lawfully in obtaining a remedy. For example, interrupting electrical service, entering the apartment without permission, removing appliances that the landlord furnished or threatening physical harm are illegal remedies. Landlords who put the tenantís belongings out on the street for nonpayment of rent may be charged with trespassing, breaking and entering and any other criminal laws that apply.
The last revision date for this article was November 1, 2011.