How to negotiate with a tenant after having filed an eviction action
Landlords and tenants often wonder how to communicate once an eviction action has been filed. Many prefer to stop communication with the other party altogether; however, one of the best times to negotiate occurs during the time between filing an eviction complaint and the eviction hearing.
Once a landlord has filed an eviction complaint with the court, the bailiff usually serves the tenant with the summons and complaint within the next five to seven business days. A hearing is generally scheduled two to three weeks after the complaint has been filed.
Landlords often ask whether an eviction hearing can be held immediately upon filing the eviction complaint. The quickest an eviction hearing can happen is generally two weeks after the complaint has been led. I am aware of no basis for holding an immediate eviction hearing.
Before any hearing can be held, the tenant must receive notice of the hearing and be provided with an opportunity to defend against the allegations made. The two week delay between the filing of the complaint and the actual hearing is so the bailiff can personally serve the tenant with the eviction complaint and the court summons (this is accomplished by the bailiff posting the complaint and summons at the rental unit). The court also obtains service via ordinary mail to the tenant. This also takes time. Two weeks affords ample time for both types of service to take place. The tenant is entitled to this service so that he or she can know of the hearing; prepare for it; attend the hearing; and present a defense.
A landlord may counter that the tenant has not paid rent in several month; owes thousands of dollars; and is currently destroying the rental premises; therefore, the landlord should have the right to an immediate hearing. The court will not move the hearing date up for these reasons.
A landlord has the ability to control the date of the hearing and the amount owed to him/her by simply not waiting to file an eviction.A landlord has ultimate control over whom the tenant is and should take the necessary steps (rental application; check references; background checks; employment verification, etc.) to ensure that a potential tenant is the best possible t for the landlord-tenant relationship.
This bears repeating in a slightly different form.
INITIALLY, THE LANDLORD HAS CONTROL OVER THE TIMING OF THE EVICTION ACTION BY SERVING A THREE DAY NOTICE AS SOON AS THERE IS A LEASE VIOLATION.
If you wait three months to serve an eviction notice because the tenant kept promising to pay rent and just needed a little bit more time then you have sabotaged yourself and the entire eviction process.
We have this two to three week period between filing the complaint and the eviction hearing. That time is best used by speaking with the tenant concerning what the tenant’s plans are with regard to remaining at the rental unit and determining whether some resolution can be reached between the parties. Magistrates often ask at the hearing whether the parties have had the opportunity to talk together to determine if any resolution is feasible. If the parties have not taken that opportunity, the court may require them to take the time to do so prior to any hearing being conducted.
Magistrates do this because they have many other cases on the docket that must be heard and because any agreement reached between the parties is usually the best outcome for the case.
Tenants are more motivated to negotiate if a court date is pending because they realize there is more at risk. I advise landlords to determine what the tenant owes in unpaid rent, utilities, late fees, court costs and attorney’s fees; present this information to the tenant in writing; and, with the help of the tenant, determine a payment plan with specific amounts to be paid on specific dates by the tenant. I recommend that the payment plan span 30-60 days (any plan beyond 30 days requires a waiver by tenant) and that any agreement reached between the parties specify that the eviction judgment and restitution of the premises have been granted to the landlord but the landlord will not enforce that eviction if the tenant adheres to the payment plan agreed to by the parties. The tenant must make each payment on or before the date specified in the payment plan. If the tenant fails to do so, the landlord may go to the court and begin post-eviction hearing procedures (posting of the red tag/writ of restitution and performing a set out if necessary).
This arrangement is preferable to situations where a landlord contacts me and indicates that the tenant has paid an acceptable amount and they want to dismiss the eviction. A landlord should factor in his/her court costs and legal fees to date when negotiating with the tenant. Although Ohio law does not generally allow for the recovery of attorney’s fees against tenants (except in certain rare situations), the parties are free to come to an agreement concerning them in order to resolve the case.