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MARK N . TSCHETTER | TSCHETTER HAMRICK SULZER , PC
Proposed “ RIGHT TO CURE ” Bill Will Change The Eviction Process
Tenant rights groups may have achieved critical mass in convincing elected officials that evictions can and should be reduced . To this end , Senate Bill 120 ( the " Bill " “ SB-120 ”) which is aimed at reducing evictions has been introduced . Normally , we wouldn ’ t discuss a Bill until it has passed . However , all indications are that the Bill is going to pass . Assuming the Bill passes , this new law will require the service of a new type of rent demand , thus fundamentally altering the initial step in the eviction process . For these reasons , we want to make landlords aware of the potential changes , as soon as possible , even though the law , if passed , won ’ t go into effect until August of 2018 .
The premise of the Bill is that evictions will be reduced if tenants are given more time to pay . This premise is flawed . Unless there ’ s some other issue going on with the tenant , ninety-nine percent of landlords already accept tenant payments well beyond the expiration of the three-day notice ( the time landlords are legally required to accept payments ). For this reason , some have gone as far to argue that this is a reason either to support or not oppose SB-120 . The reasoning is that the Bill does not alter the status quo . The status quo is that landlords already accept tenant payments beyond the expiration of the three-day rent demand and during eviction .
Landlords accept money because they don ' t want to evict tenants . Unbelievably , some tenant rights supporters think that landlords want to evict tenants . Regardless of whether you are for , against , or indifferent to SB-120 , it is important for the rental industry to collectively push back and dispel this false narrative being advanced by tenant rights groups . This false narrative led to this Bill and other landlord-tenant bills being introduced at the State Capitol . Everyone needs to know that landlords do not enjoy or want to evict tenants , and that landlords prefer rent payments over evictions . The simple fact of the matter is that there are only two options when a tenant does not pay rent . One , do nothing . Two , evict .
If a tenant offers to pay at any time up to the day before court , the landlord must accept the tenant ' s payment .
A refresher of the current eviction process is necessary to understand how SB-120 will affect the current eviction process . Right now , to start an eviction for non-payment of rent , the landlord must serve a three-day Demand for Rent or Possession . The rent demand must demand , in the alternative , payment of the rent within three days , or possession of the property . Upon service of the rent demand , the tenant must either pay the rent within three days ( not counting the day of service ) or vacate the premises within three days .
If a tenant fails to pay or vacate within three days , the tenant is deemed to be unlawfully detaining the property . In layman ‘ s terms , this means the tenant is occupying the property , but not paying for the privilege of occupancy .
When a tenant is unlawfully detained in the property , a landlord is entitled to a court order restoring landlords right to possession or a judgment for possession .
Under current law , if the tenant fails to pay within three days , the tenant forfeits the tenant ' s right to possession , unless the landlord chooses to accept the rent after the three-day demand has expired . Thus , once a tenant is unlawfully detaining the property ( once the three-day rent demand expires ), the landlord has no obligation to accept the tenant ' s rent and can refuse any offer by the tenant to pay the rent . By refusing to accept rent after expiration of the three-day demand , the landlord is saying " I ' m choosing to be restored to possession of the premises instead of accepting the rent ".
Under the new law , the tenant gets extra time ( beyond the expiration of the three-day rent demand ) to cure a lease default by paying the rent . Specifically , the Bill expands the cure period to the day before the eviction court date .
In other words , once a three-day is served for non-payment of rent , a tenant can pay ( cure the rent default ) at any time up to and including the day before the first eviction court date . If a tenant offers to pay at any time up to the day before court , the landlord must accept the tenant ' s payment . Obviously , one of the downsides of the SB-120 is that if the
40 | TRENDS • FEBRUARY 2018 www . aamdhq . org