What are hold over tenants? I wrote what to do if you tenant won’t leave a number of years ago. It is time to refresh and expand that discussion.
A hold-over tenant may be called different things in different jurisdiction, but it is when a tenant doesn’t vacate the property on the day they agreed to leave (or on the date you set in the notice to vacate). The tenant is supposed to be out on the 31st, you show up and they have not left. Now what? I think there are several different scenarios that could happen. Let’s explore them:
Tenant Just Needs Another Day or Two
This does happen where a tenant’s new property is not ready for them to move in or maybe their moving truck is not available on the 31st. Hopefully you have a few days until the next tenant moves in. If so, I generally just play nice and work with the outgoing tenants. Obviously, you need to lock in their new move out date and feel confident about it. Keep in touch with the tenant often to ensure they are working on moving out. Some leases have a per day charge for each day a tenant delays, see note below on accepting rent after hold over, I have not found these work well and/or are completely legit.
Tenant is Holding Over for More than a Week
Similar to the above, make sure you have a full understanding and agreement of when this tenant really is going to leave. I would get it in writing and have the tenant sign on their new move out date. I would also charge them pro-rated rent for those days. Dig into why they are not leaving on time. I had a tenant previously that did not want to leave, but eventually said they found a new property, they stalled for 45 days claiming that the new property was not ready yet. I got the name and number of the “new” landlord, as you can expect, they had no idea who these tenants were. Document everything.
Hold Over Tenant has No Plans
This is the most frustrating situation. Tenant is avoiding you, but you know that they are still in unit. Maybe you have spoken to them, but they are refusing to leave or just have no plan. Do not delay, file the hold over eviction. There is generally no defense against a holdover except if the tenant can show that they did not know they were supposed to move out. This is why you need to give proper notice. I post the door, take a photo, knock and hand it over if possible, email etc. For filing an eviction for a hold-0ver tenant, use a local real estate attorney. At least in Minnesota, the courts have become too complex and every tenants get a free legal-aid attorney that you don’t want to risk the eviction over a technicality.
Accepting Rent After Hold Over
This is an interesting twist. There is case-law in Minnesota that says that if you accept rent from a tenant after the date passes that they were supposed to move in, you have re-established a month to month agreement and your notice period starts over. While I am not an attorney….if the tenant owes you rent from a previous month, you might be able to argue that accepting rent during hold over was for that previous month. Just be careful not to make a mess as this could harm your eviction chances.
If you are in the rental business for long enough, you will eventually have to deal with a tenant holding over. Follow these steps and document everything to make the outcome as smooth as possible.