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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