HANDLING TENANT HOLDING OVER CASES

This SOP provides a comprehensive guide for handling tenant holding over cases, where a tenant remains in the rented property after the lease term has expired. The procedures are based on Maryland law, specifically REAL PROP. § 8-402.

Key Definitions and Terms

Tenant Holding Over

A tenant who remains in the property they are renting after their lease has ended. This can refer to tenants who pay rent without a renewed lease or tenants who remain without paying rent.

Landlord

The party who owns the property and has leased it to a tenant.

Notice to Vacate

A written notice provided by the landlord to the tenant, informing them of the requirement to vacate the property after the lease term ends.

Summons

A legal document issued by the court requiring the tenant to appear in court to show cause why the property should not be returned to the landlord.

Judgment for Possession

A court order granting the landlord the right to reclaim possession of the property.

Warrant of Restitution

A court order directing the sheriff to enforce the judgment and return possession of the property to the landlord.

Periodic Tenancy

A tenancy that continues for successive periods (monthly, weekly, etc.) until terminated by proper notice by either party.

Steps to Handle Tenant Holding Over Cases

1. Identifying the Holdover Tenant

1. Review the Lease Agreement:

   • Confirm that the lease term has expired and the tenant remains in possession of the property.

2. Assess Damages:

   • Determine if there are any damages caused by the holdover, such as lost rent from a new tenant who could not move in.

2. Collecting Documents from Clients

1. Lease Agreement:

   • Obtain a copy of the original lease agreement.

2. Notice to Vacate:

   • Prepare and provide the notice to vacate document.

3. Communication Records:

   • Collect all correspondence with the tenant regarding the lease expiration and holdover status.

4. Payment Records:

   • Gather records of any rent payments made by the tenant during the holdover period.

3. Providing Notice to the Tenant

1. Prepare the Notice to Vacate:

   • Draft a written notice stating that the lease term has expired and the tenant must vacate the premises.

2. Determine Notice Period:

   • For month-to-month tenancies, provide a 60-day notice. (REAL PROP. § 8-402(b))

   • For year-to-year tenancies, provide three months' notice. (REAL PROP. § 8-402(b)(3)(i))

3. Deliver the Notice:

   • Serve the notice to the tenant by first-class mail and retain a copy for your records.

4. Before Filing the Complaint

1. Verify Notice Compliance:

   • Ensure that the correct notice period was provided and properly documented.

2. Prepare Evidence:

   • Collect all necessary documents and evidence to support your case, including the lease agreement, notice to vacate, and any records of tenant communication and payments.

5. Filing the Complaint

1. Complete the Complaint Form:

   • Use District Court form DC-CV-080 for tenant holding over cases.

   • Ensure the plaintiff is listed as either the landlord or the property manager. If the business is the plaintiff, the address must match the address listed in the Maryland Business Express lookup.

2. Naming the Defendants:

   • Name each party on the lease as defendants, and include "ALL OCCUPANTS" to cover any additional persons residing in the property.

3. File the Complaint:

   • Submit the completed form and a copy of the notice to vacate to the District Court in the county where the property is located. (REAL PROP. § 8-402)

6. Court Summons

1. Issuance of Summons:

   • The District Court will issue a summons requiring the tenant to appear in court. (REAL PROP. § 8-402(b)(2)(i))

2. Service of Summons:

   • The summons may be served by the constable or sheriff, either by personal service or by posting conspicuously on the property if the tenant cannot be found. (REAL PROP. § 8-402(b)(2))

3. Mailing of Notice:

   • Send a copy of the summons to the tenant by first-class mail. (REAL PROP. § 8-402(b)(2)(ii))

7. Preparing for the Trial

1. Organize Evidence:

   • Ensure all documents are organized and ready for presentation in court.

2. Witness Preparation:

   • Prepare any witnesses, including property managers or others with relevant information about the tenancy and lease agreement.

3. Legal Representation:

   • Ensure legal counsel is prepared to present the case and argue on behalf of the landlord.

8. Court Hearing

1. Presentation of Evidence:

   • Present evidence to prove that the lease term has expired, proper notice to vacate was served, and the tenant remains in possession.

2. Court Decision:

   • If the court finds in favor of the landlord, it will enter a judgment for possession and may award damages if the tenant was personally served. (REAL PROP. § 8-402(a)(3)(ii))

3. Warrant of Restitution:

   • The court will issue a warrant to the sheriff or constable to deliver possession of the premises to the landlord. (REAL PROP. § 8-402(b)(2)(i))

9. Post-Judgment Actions

1. Appeal Process:

   • Either party may appeal to the circuit court within ten days of the judgment. (REAL PROP. § 8-402(b)(2)(ii))

2. Tenant's Requirements for Appeal:

   • To retain possession during the appeal, the tenant must file an affidavit stating the appeal is not for delay, post a sufficient bond, pay all rent in arrears, and cover any losses or damages to the landlord. (REAL PROP. § 8-402(b)(2)(iii))

3. Execution of Warrant:

   • If the appeal is in favor of the landlord, the circuit court will issue a warrant for restitution of possession, which the sheriff will execute.

10. Practical Considerations

1. Acceptance of Payments:

   • Acceptance of any payment after notice but before eviction does not waive the notice to vacate or judgment for possession unless agreed in writing.

2. Documentation:

   • Keep detailed records of all notices, filings, and communications to ensure compliance and support your case in court.

11. Additional Remedies

1. Suing for Money Damages:

   • If the tenant has already vacated but owes money, use Form DC-CV-082 to sue for unpaid rent and other damages.

2. Nonjudicial Eviction:

   • The landlord cannot evict the tenant without following proper judicial procedures and obtaining a warrant of restitution.

Holdover Tenant Guide: Everything You Need to Know

What is a Holdover Tenant?

A holdover tenant is a tenant who remains in the property after their lease has ended. This can occur with or without the payment of rent.

Potential Issues with Holdover Tenants

• Eviction: Non-payment of rent can lead to eviction proceedings.

• Lease Terms: Holdover tenants may enter a month-to-month tenancy if rent is accepted.

• Liability: Landlords may be responsible for incidents occurring before eviction if they stop accepting rent.

Tenant Rights

• Right to File Complaints: Tenants can file complaints for safety or health violations.

• Right to a Habitable Home: Tenants are entitled to a safe and habitable living environment.

• Right to Notice: Tenants must receive advance notice before the landlord can enter the premises.

• Right to Utilities: Tenants have the right to continued utility services.

Landlord Actions

• Eviction: Landlords can evict holdover tenants by following proper legal procedures.

• Accepting Rent: Accepting rent can establish a month-to-month tenancy.

• Suing for Damages: Landlords can sue for unpaid rent and other damages caused by the holdover.

Avoiding Holdover Situations

• Clear Lease Terms: Define start and end dates, rent due dates, and post-lease procedures in the lease agreement.

• Notice Clauses: Include clauses stating the actions to be taken after the lease ends, such as transitioning to a month-to-month tenancy or requiring a new lease agreement.

Evicting a Holdover Tenant

• Legal Procedures: Treat the tenant as a trespasser and follow judicial eviction procedures.

• Nonjudicial Eviction: Obtain a warrant of restitution to legally remove the tenant.

Periodic Tenancy

• Definition: A tenancy that continues for successive periods until terminated by proper notice.

• Eviction for Holding Over: Landlords must prove proper written notice was given to end the lease.

Appeal Process

• Tenant's Appeal: Tenants can appeal an eviction judgment but must meet specific requirements to remain in the property during the appeal.

Nonjudicial Eviction

• Warrant of Restitution: The sheriff must be present to oversee the eviction process.

Flow Chart of the Tenant Holding Over Process

1. Identify Holdover Tenant:

   • Confirm lease expiration and tenant’s continued possession.

2. Prepare and Serve Notice:

   • Draft and serve the notice to vacate (60-day notice for month-to-month).

3. File Complaint:

   • Complete and file form DC-CV-080 with the District Court and attach the notice to vacate.

4. Issue Summons:

   • Court issues summons for tenant to appear.

   • Serve summons and mail a copy to tenant.

5. Prepare for Trial:

   • Organize evidence and prepare witnesses.

   • Ensure legal representation is ready to present the case.

6. Court Hearing:

   • Present evidence and arguments in court.

   • Obtain judgment for possession and damages if applicable.

7. Post-Judgment Actions:

   • Handle any appeals and execute warrant of restitution.

8. Additional Remedies:

   • Sue for money damages if tenant vacates but owes money.

By following this SOP, landlords can effectively navigate the legal process for repossessing property from a tenant holding over. Ensure compliance with all statutory requirements and consult legal counsel if necessary to handle complex cases or unique situations.