Whatever you do . . . DON'T GET EVICTED!

It's expensive . . . it's traumatic

. . . and the consequences can haunt you for years.

Here's a typical situation: Al is late with rent — again. Landlord, who depends on rental payments to make his mortgage payment, gives a 30-day notice to move out. Instead of packing up his stuff and finding friends to stay with, Al goes into a state of "denial" thinking it will go away like a bad dream.

Thirty days pass. Al's still there and owes another month's rent. Landlord files suit to repossess the unit and recover what he owes. On court day, the Judge asks Al to pay $800 in back rent, $80 late fees, and $300 for the landlord's court and attorney fees. Al doesn't have the $1180, of course, so it is reported to the credit bureau, a red flag to all future landlords that Al is "a bad tenant."

Ten days later the landlord and sheriff show up and throw Al's stuff in the street. Passers-by hover like vultures when they spot his CDs and glad rags in the gutter.

The landlord goes back to court to garnishee Al's wages and he's fired as a result.

Yes, it's a real sad story . . . and it happens every day.

THE EVICTION PROCESS

Because of competition for affordable rentals, the trend in the last few years has been to evict quickly. The landlord knows he can easily re-rent the unit. If you can't fulfill the conditions of your lease, don't expect the landlord to be as lenient as in the past.

TENANT TIP: Do all in your power to avoid eviction! Keep an extra month's rent stashed in a safe place for emergencies. If you know rent will be late, communicate early! You might offer a partial payment along with a Promissory Note stating the exact date(s) you intend to pay the rest. If you're lucky, your landlord may delay filing a Detainer Warrant. Then pay as promised or you're history!

The 4-step process described on the next page usually begins when the tenant fails to pay rent on time or breaks some other provision in the lease or rules. All landlords in Hamilton County must follow these steps! Usually the best thing is to get out within 30 days and avoid some of the attorney fees. Put your stuff in storage and move in with friends or relatives until you can get back on your feet. City or County Human Services might pay one month's rent if you prove you can pay the following month.

During the eviction process the landlord cannot:

• Lock you out
• Cut off utilities
• Remove appliances
• Throw you or your stuff out
• Threaten to harm your person or possessions

If this happens, call the police and get a copy of the report. Make an appointment with Legal Services or another attorney. Keep a record of all events.

EVICTION NOTICES MAY VARY

The type of eviction notice you receive depends on the type of lease violation. Notice must always be in writing and delivered to you or another adult in the house. If it is sent by certified mail — and you fail to sign for it — it is still considered legally "delivered."

TYPE: Cancellation of a month-to-month tenancy. Where there is no lease agreement, a "reason" is not necessary for termination. There may or may not be any violation of your agreement on your part.
TERM: At least 30 days before the next date that rent is due. In many cases this may require more than a 30 day notice. For example: if rent is due on May 1, and you receive your notice on April 20, your final day to be out should be May 30th.

TYPE: Late rent paid on a monthly basis. Note: you may have a grace period of a few days written into your lease. Notice can be delivered immediately after the grace period ends.
TERM: Thirty days unless otherwise stated in your lease. Some larger complexes may use lease language that waives your right to 30 days' written notice. You are presumed "notified" of a pending eviction whenever rent is late. You may get a "demand for full payment" with a due date. After that, you will get a detainer warrant or a letter from an attorney (with legal fees added).

TYPE: Late rent paid on a weekly basis.
TERM: 10 days notice.

TYPE: Some rule of the lease is broken (other than late rent). This could include noise, unauthorized guests, parking, negligent damage or other violation, which should be stated in the notice.
TERM: This is a warning notice. You are given 14 days to correct the situation, but if it happens again within 6 months, you can be evicted with one more 14-day notice.

TYPE: Tenant threatens safety or welfare of other tenants or their property. This could include theft, vandalism, drunk driving, fighting, out-of-control guests, or other acts or threats of violence.
TERM: When serious breakdown occurs, only 3 days notice is required (T.C.A. 66-28-517). There must be a witness to the violation. Remember: you are legally responsible for the behavior of your friends and children. If the landlord has to call the police, you might lose your lease.

TYPE: Sale of narcotics or prostitution on premises (law went into effect July 1997 as the Crack House Bill).
TERM: If neighbors present good evidence of drug dealing or prostitution at a certain address to the District Attorney, he can order the landlord to give you a10-day eviction notice.

COURT DAY

BE THERE!
The detainer warrant will show time and place. Show up on time and plan to spend about 3 hours because the docket may be full. If you don't show, the landlord can automatically be granted whatever rent he claims you owe. Be in court (even though you may know you'll lose) with rent receipts--especially for any rent you've paid since receiving the notice of eviction.

BE SQUARE!
Guys . . . lose the baseball cap! Wear a suit or jacket and tie. Put thelong hair in a pony tail. Let's face it, courts are mainstream System.Your appearance tells the Judge whether you take the situation seriously or not. Women should wear conservative business clothes and avoid a sexy image.

BE PREPARED!
The Judge will ask a few questions. Listen! Then answer directly and submit your documentation. Don't vent your spleen or try to list all the misdeeds of the landlord. Stay with the issue at hand and get to the point! If you're in court because you haven't paid rent, don't choose that time to talk about poor maintenance, unless you've followed the law in paying for repairs yourself. Repair problems are not a legal reason to withhold rent unless the unit is truly uninhabitable. Practice beforehand if you want to bring important new information to the proceeding. Make your points briefly and clearly and look the judge in the eye.

BE AWARE!
Like it or not, you're in the presence of POWER. Be respectful and be humble. "Attitude" will get you nowhere fast! The judge has heard a million cases and all the excuses and sob stories too. He got where he is because he's very quick and perceptive. He will know by the organized way you present yourself if your story is worth listening to. You will prejudice the court against you if you become loud, whiny or argumentative, or if your story is hard to understand.

JUDGMENT/GARNISHMENT

You will have 10 business days after your court date to pay the amount awarded by the court to the landlord. This may include back rent, late fees (not to exceed 10% of rent owed), cost of damages (if it exceeds your deposit), and at least one-third of the landlord's attorney fee and court costs (which usually add another $250 or so to your bill).

If the judgment isn't satisfied, the landlord can garnishee your wages, which means he has the right to have your employer deduct the amount of the judgment from your paycheck. Some employers will fire an employee if this happens.

Payment Plan to Avoid Garnishment

If you don't have the money to satisfy the judgment, ask the clerk of General Sessions Court to file a motion to make affordable payments to the court at regular intervals. You must sign an affidavit swearing that you are unable to pay by other means. You'll need to show proof of income (recent paycheck stub) and a list of monthly bills as proof of poverty. If this motion is granted, your wages won't be garnisheed as long as you make payments as promised.

THE RIGHT TO APPEAL

Seldom does a tenant have grounds — or the means — to appeal an eviction, but if you have good documentation that your rights were violated, you can file an appeal within 10 days of the Judge's decision.

Grounds for appeal might be:

• You are subject to retaliatory eviction.

• You have received a 3-day notice and you know the landlord is using it improperly.

• You failed to receive proper notice.

• You see a pattern of discrimination against minorities, disabled people (including those with AIDS), women with children, or religious groups.

• A new owner is not honoring your lease agreement that he inherited when he bought your building.

• The landlord is evicting you for personal reasons rather than lease violations. You must have witnesses and documentation.

Don't waste time and money on an appeal if your rent is behind or if the landlord can show a history of complaints about you. If you appeal for "lack of proper notice," it will be very hard to prove that you didn't get it unless you can show a pattern of the same behavior with other tenants. You need witnesses for all allegations. Get your case together!

You can go to the General Sessions Court Clerk's Office and file the appeal yourself, but it's best to get a lawyer. An appeal will not allow you to stay in the unit longer unless it's a special situation handled by a lawyer. The Judge will embarrass anyone filing a "frivolous" appeal in an attempt to foil the system!

Note: To appeal both the judgment and the right to stay in the propeny, the tenant must post a cash Appeal Bond equal to one year's rent. If the tenant loses the appeal, the whole debt (back rent, damages, and court costs) will be subtracted from the bond.

If the tenant is willing to move out but is protesting the money judgment, and is unable to post a cash bond because of "poverty," he may sign a Pauper's Oath in lieu of an Appeal Bond and swear that he is "justly entitled" to seek relief from the judgment of the court.