TAKING COUNSEL: Tricky tenant evictions

  • 2007-09-05
  • Martins Mezinskis
A landlord may terminate a residential lease and evict tenants without providing alternate accommodation if the tenant has, for more than three months, failed to meet his or her rent payments or payments for building management (and utilities) services, despite having had the opportunity to utilize the lease premises in accordance with the terms of the lease agreement and law.
What is the meaning of the three-month "non-payment" precondition for eviction? It does not mean that the landlord must have proof of three successive monthly non-payments by the tenant before being able to commence eviction proceedings.

Instead, it means that cumulatively there must an outstanding balance of rent or property management debt that, when added up, equal at least the sum total of three months' rent. (Otherwise, it would be all too easy for a tenant to make a payment of one month's proper rent and follow it up with, say, two paltry partial payments or no payments at all for the two following months, until the next three month period arrives, when the cycle could be repeated again.) Even the failure to pay a specific utility 's if it meets the three months' cumulative debt test 's can trigger the landlord's right to commence eviction proceedings.
Nonetheless, on a plain reading of the law, it would appear that in cases of utilities payment debt, the three months' debt must pertain to a specific utility and cannot arise from the sum total of all utilities so that it exceeds the required payments of three months of a specific utility.

If the landlord can prove that the three month non-payment threshold is met, then he or she must still observe warning letter requirements, which are not as simple as is sometimes thought to be. The landlord must serve a warning letter to the tenant (best by registered mail with an acknowledgment-of-receipt card) giving the tenant a month's time to pay the debt. If the landlord wishes to rely upon the warning letter as a basis for eviction in the event of non-repayment, then the landlord must also spell out the consequences of the failure to repay the debt amount within one month's time 's i.e., that such failure shall result in eviction of the tenant and all residents of the premises leased by the tenant.
There is some debate in legal practice as to whether or not spelling out the consequences of non-payment is necessary.  In our view, there is no harm in doing so, and it is practically important for the tenant to understand that failure to pay may mean that he will be evicted.

There is also sometimes confusion about who should be receiving the demand letter and notice of eviction. Is it the tenant alone, or does everyone in the leased unit have to receive notice? The Supreme Court Senate Panel has opined that "a warning of eviction is to be delivered to the tenant and all of the persons of legal age residing in the leased premises. Such notice must request all such persons to attend the court hearing on eviction."
Failure to deliver such a notice to all of the adult inhabitants of the leased premises may result in rejection of the eviction application.
If the tenant makes payment after commencement of the legal proceedings for eviction, the basis for the claim is thought to disappear, and in such case the court is likely not to permit the eviction. As disturbing as it may be to landlords, if the tenant wants to be a regular delinquent payer but keep the lease legally valid, current legal practice allows him to do so by systematically making irregular payments while simultaneously maintaining his rights to the tenancy. 
Martins Mezinskis is an associate at Kronbergs & Cukste, a member of Baltic Legal Solutions, a pan-Baltic integrated legal network of law firms which includes Teder, Glikman & Partnerid in Estonia and Jurevicius, Balciunas & Bartkus in Lithuania, dedicated to providing a quality 'one-stop shop' approach to clients' needs in the Baltics.