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LANDLORD/TENANT ISSUES - I REALLY NEED TO GET THEM OUT OF MY HOUSE!
An issue of increasing interest to Nevada residential-property landlords is the problem created when tenants fall behind on their rent or otherwise breach their lease, and you have to evict them. This article will provide an overview of the notice and procedural requirements necessary to initiate the eviction proceedings (continued in my next blog entry). There are a number of traps to be wary of in exercising your rights as a landlord as you try to have a tenant removed from your property.
Trap number one is that the tenant must be in unlawful detainer before the court has authority to hear or grant an eviction. Unlawful detainer simply means that a tenant is in unlawful possession of the rental property. The most usual example is where the tenant has failed to pay rent. The general approach in these instances is for the landlord to serve a Five-Day Notice for Unlawful Detainer for Non-Payment of Rent, which states that tenant’s rights are terminated due to its failure to timely pay rent. A tenant may contest the eviction action by filing a Tenant’s Affidavit/Declaration with the court and delivering a file-stamped copy to the landlord by noon on the fifth day following service. If the Five-Day Notice is contested, the court will conduct a hearing and will decide the matter. If the tenant does not contest the eviction, it must either vacate the premises or pay the past-due rent by noon on the fifth day after service.
In cases other than the non-payment of rent, another trap is that the tenancy must first be legally terminated by the landlord before the tenant can be said to be in unlawful detainer. A tenant can be evicted only after a tenancy is legally terminated and the tenant fails to vacate the premises. This termination of rights is accomplished by service of a written Notice of Termination and the expiration of that notice (the period of notice varies depending on the nature of the tenancy - week-to-week; month-to-month; for a fixed term; etc.). This Notice of Termination provides information to the tenant of the reasons for termination of the lease besides for non-payment of rent.
For any reason other than the non-payment of rent, Nevada law requires service of two notices - the “Notice of Termination” and the “Five-Day Notice of Unlawful Detainer.” Cases that do not involve the failure to pay include termination for no-cause; for breach of the lease; for wrongful assignment or subleasing; waste; unlawful business; nuisance or violation of controlled substances laws. For these cases, the landlord must first legally terminate the tenancy which then places the tenant in unlawful detainer. Once the tenant is provided a Notice of Termination, a third trap is exposed - that of proof of service of the Notices upon the tenant.
Under Nevada law, the landlord must be able to prove legal service of the required notices to the tenant. Service of process is generally accomplished by, 1.) service personally upon the tenant; 2.) service upon an inhabitant of the property of suitable age and mental capacity and by mailing; and 3.) by posting at the property and mailing. If the landlord uses personal service to the tenant himself, the server must obtain both the signature of the tenant being served and of a witness. If service is made by leaving a copy with an inhabitant of suitable age and mental capacity and by mailing a copy to the tenant, the server must attach a US Postal Certificate of Mailing (this is not the same as certified mail). If service is accomplished by posting at the property and by mailing to the tenant, the server must attach the same US Postal Certificate of Mailing. Whichever method of service is selected, the proof of service must be filed with the court before the judge can grant an eviction order. Therefore, it is always good practice for the landlord to obtain a proof of service once the tenant is served and to file this proof of service with the court.
After the tenancy is legally terminated and service of the required notice is accomplished, the landlord may then invoke the eviction process.
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