A common resolution to an eviction action is for the landlord and tenant to agree to a move-out date. Another common resolution to an eviction is for the tenant to pay the landlord what is owed (skip to the bottom of the page for more information on this).
The tenant may realize that he or she is clearly in violation of the lease through nonpayment of rent or otherwise. That tenant may just need additional time to move out of the rental unit and into a new one. If an eviction action has already been filed, the parties can put their agreement in writing, sign it, and file it with the court. That agreement (or agreed entry) becomes the decision in the case. It obviates the need for an eviction hearing as the parties have already resolved the case.
The typical move-out agreement states that the tenant will move out on or before a specific date. Let’s just pick July 8th as the agreed upon move-out date. If the tenant moves out of the rental unit and returns the keys on or before July 8th, the landlord agrees to dismiss the eviction action.
If the tenant is still in the premises after July 8th, the landlord can enforce the eviction against the tenant. To enforce the eviction, the landlord will submit an affidavit to the court indicating that the tenant breached the agreed entry by not moving out on or before the date agreed. The landlord’s lawyer will submit the affidavit to the court along with other paperwork necessary to complete the eviction. The judge will approve the eviction and the landlord can proceed with evicting the tenant.
Most agreements have a provision indicating that if the tenant fails to leave by the date indicated, the landlord can proceed with an immediate set out of the tenant and the tenant’s belongings. This means that the landlord does not have to wait an additional five days after the writ of restitution/red tag has been posted before scheduling a set out with the bailiff. The landlord is still subject to the bailiff’s schedule, and the bailiff often has many other matters before yours.
A writ of restitution or red tag is simply a red sticker that the bailiff posts on the tenant door indicating that the tenant has been evicted and must vacate within five days after posting.
If the tenant does honor the agreement by moving out on or before the date indicated, the landlord dismisses the eviction action with the court. This means that an eviction was not granted and the case was dismissed or withdrawn by the landlord.
The move-out agreement will often focus only upon a move-out date. The agreement will not concern any amounts owed to the landlord or any amounts owed to the tenant. The parties are free to separately pursue any amounts owed through the collection process or through the court system.
From the landlord’s point of view, he or she will not know the total amount owed until after the tenant has fully vacated the premises and the landlord is able to inspect the rental unit for damages beyond normal wear and tear. Thus a move-out agreement will not address amounts owed because the landlord has no idea in what condition the tenant will return the rental unit.
What are the advantages of coming to a move-out agreement with the tenant?
- As I indicated earlier, the move-out agreement becomes the decision in the case. This means that the parties are controlling the outcome of the case and taking the case out of the judge’s hands.
- The move-out agreement is enforceable by the court. If the tenant fails to move-out, the landlord can enforce it through the court and still get an eviction.
- An eviction hearing is no longer necessary.
- The move-out agreement can often proceed faster than the eviction process. In the normal eviction process, the tenant may be able to delay the hearing by a week. Even after getting the eviction, the landlord has to wait five days after the posting of the red tag before scheduling a set out. With a move-out agreement, the parties can waive this five day waiting period.
- The tenant feels like they had some control in the outcome and may feel less vindictive during the move-out resulting in less damage to the rental unit.
If all parties are amenable, a move-out agreement filed with the court is an expedient way to resolve an eviction matter. No hearing is necessary as once the written agreement is filed with the court, it becomes the decision in the case.
What if the tenant does not abide by the terms of the agreed entry?
Usually the agreed entry (or written agreement between the parties) requires the tenant to make payments on certain dates and/or move out by a certain date. If the tenant misses a payment or fails to move out on the chosen date, how does the landlord/property manager proceed?
The landlord will inform the attorney as soon as the tenant fails to make a payment or fails to move out on time. The attorney will send an affidavit to the landlord/property manager. The affidavit tells the court how the tenant broke the agreement between the parties and asks the court to grant the eviction. The landlord/property manager will sign the affidavit in front of a notary, have the affidavit notarized, and send a copy of the affidavit back to the attorney (usually via email).
The attorney will submit the affidavit to the court and apply for the red tag and set out. The court will need time to review the affidavit and approve the writ and set out request. Once approved, the landlord/property manager can contact the bailiff and schedule a set out (614-645-7780).
Resolving an eviction by accepting payment from the tenant for monies owed
If the tenant is willing to pay what is owed, the parties can reduce this agreement to writing by specifying amounts of payments and payment dates. The agreement would indicate that if all payments are made on time then the landlord will dismiss the eviction. And the agreement would set forth that if a payment is missed, the landlord can apply to the court for the eviction based upon the tenant’s failure to honor the agreement. A second hearing would not be necessary in this case. The written agreement would be signed by all parties and submitted to the court for the judge’s signature. The written agreement then becomes the decision of the case.
You can find more information on the set out process here. Since most agreed entries provide for an immediate set out, the link provided addresses those questions.