Tennessee Eviction Laws: The TN Eviction Process
In Tennessee when a tenant hasn’t left the property after you’ve given them notice to leave for breaching the lease (typically for non-payment), the legal term for that is unlawful detainer (forcible entry and detainer – sometimes shortened to FED – is defined somewhat differently by the law, but both unlawful and forcible detainers have the same process) and to legally get them tossed out you must file a detainer action; other states may use different terms on their paperwork, but an eviction is an eviction by whatever name and a Tennessee Eviction requires a detainer suit, initiated by a detainer summons. There are several key points which you must follow in order to successfully evict a tenant in Tennessee.
- Tennessee eviction laws are different in the counties covered by the Uniform Residential Landlord Tenant Act. The Tennessee version of the URLTA goes well beyond the basic URLTA guidelines. Frankly, landlords in Tennessee have let their legislature run all over them (or the politicians have figured out there are more tenants voting than property owners). Tennessee bases URLTA on county population, including additional rules for the highest population counties so be aware of where you fall in the URLTA. The Tennessee URLTA counties at this time are: Anderson, Blount, Bradley, Davidson, Hamilton, Knox, Madison, Maury, Montgomery, Rutherford, Sevier, Shelby, Sullivan, Sumner, Washington, Williamson and Wilson.
- Eviction laws in Tennessee require giving written notice of the tenant’s breach – you can’t just tell them orally (sometimes called eviction letters, but legally it’s a notice). One sure-fire method is to post the notice to the door. Yes, you actually tape a notice to the door. I know, that sounds odd, as the wind might blow it off, or a prankster take it off, or any number of things theoretically could happen and the tenant claim they never saw it (which many of them do, even when they know good and well they saw it, or were personally served). However, forcible entry and detainer is technically a suit in rem (latin for “against the thing” – in this case to regain possession of the rental property) rather than a suit in personam (“against the person”), so posting front door notice customary, (and you can always deliver the notice in duplicate by other means as a backup). The reason is the issue in a forcible entry and detainer suit is possession of the property (it’s not a money suit; in Tennessee you have to file a separate action to get the money the tenant owes you), so that makes it in rem. As an added protection, we take a time-stamped picture of the notice on the door, but our testimony that notice was posted has always sufficed. One benefit of posting to the door is psychological; if a tenant knows a notice gets posted on their door for the world to see when the rent is late that can be a bit of a motivator.
- You must have the correct length of time on the eviction notice. Tennessee law allows a breach notice to be as short as fourteen days, but only if this is in writing in your lease and URLTA is different
(see below). If your written lease does not state a notice period, then the general default in Tennessee is 30 days notice. Too many times I’ve seen an unfortunate landlord who is already out a month or two’s rent have to be told by a judge that their notice period was too short and they have to wait at least another 30 days. If you have an oral lease, you are in a world of trouble to start with, but the default notice period is going to be 30 days in Tennessee. URLTA areas have more extensive and complicated rules; For non-payment of rent or other monies required under the lease, the notice period is effectively 30 days (the tenant has 14 days to pay, so there is this strange period after 14 days where you can’t take action yet, but the tenant is past the notice period). However, if it is a breach that materially affects health and safety the notice can be 14 days, and also if the same breach has occurred within the last six months, the notice can be 14 days. So, if you gave a tenant notice of breach for non-payment of rent three months ago and they eventually came up with the rent, but they haven’t paid the current month, you can make the notice for 14 days. It’s a good idea to document in the 14 day notice the prior notice (save a copy, record the date given, etc.). Tenants may try to argue they are entitled to the Tennessee 30-day notice instead of the Tennessee 14-day notice if you don’t have records. Finally, there is a 3-day notice for extreme cases of property damage or violence; that’s a case where attorney advice is highly advisable to make sure you can make the 3 days stick.
- Your eviction notice, Tennessee or in any state must contain all the essential elements. It should state the date, the tenant’s name(s), the amount past due (or other breach), a demand it be paid (“pay or quit” is often the phrase used), or other type of breach cured, and notice of (however many days is appropriate) to pay/cure or face eviction. Be careful accepting partial payments after the notice has been posted. It could be argued, and quite possibly successfully depending on specific wording of waiver clauses in the lease, that accepting a partial payment creates a need for a new notice period.
- After the notice period is up, if the tenant has not paid or vacated, eviction laws in Tennessee require you to file a forcible entry and detainer action (complaint); the form is called a Detainer Summons. IMPORTANT: if your property is in an LLC, corporation or other arm’s-length entity, it’s possible only an attorney can file the complaint. The reason is the legal theory your LLC is a separate “person” legally from you, and you can’t practice law for this separate “person”. You can generally serve as a personal or authorized representative for the LLC at the forcible hearing and not have to pay an attorney for that, but you may not be able to file the complaint. The forcible entry and detainer action is normally filed with the general sessions court clerk (at the Circuit Clerk’s office usually) in the county where the property is. It’s possible the clerk can tell you whether arm’s-length entities like LLC’s have to have an attorney file the complaint (though they are not allowed to do anything that may seem like they are giving legal advice). There will be court costs, and there will be a fee to serve (the sheriff will attempt personal service and if unable will post the court notice to the door). The court and serving costs will vary by locale, but typically the cost of the two combined is somewhat over $100. Upon a guilty finding in the complaint, the tenant is typically liable for those costs (if you sue them for money they owe). Be aware of filing and court dates; there will be a cut-off day to be on the next forcible docket; miss it and you have to wait until the following docket. Larger counties may handle forcibles every day, smaller counties maybe only once a week. The court clerk will have this information. Tennessee has a standard detainer summons complaint form online at http://www.tsc.state.tn.us/administration/judicial-resources/forms-documents/court-forms . Look for “Detainer Summons” and click on the link.
- If the tenant doesn’t file a written answer within the days allowed (6), your case can be put on the default docket. You still have to show up and explain why you are entitled to take possession. Otherwise, trial date will be set if the tenant does file the written answer.
- Show up for the detainer hearing with the written lease, and any other supporting documents (photos, affidavits, etc.) in hand. If you have a statement showing the payment history, that’s good too. A judge will handle most detainer cases quickly, and while the judge will typically give the tenants a brief time to give their side, there are few things that a tenant can bring up which will stop the Tennessee eviction process. Inadequate notice under eviction law is the primary defense, and that is mostly a question of whether you have given the proper time in your breach notice. Sometimes it becomes apparent that the agreement is actually a contract for deed (land contract), and that will defeat a detainer complaint because that involves title to the property and requires foreclosure or forfeiture actions first rather than eviction (I’ve seen this happen; it is devastating, since eviction can take a very long time). The tenant can claim that they have paid you, but they’ll need some proof of payment for that to stick. About half the time the tenant won’t even show up and you’ll get the judgment by default. When the tenant does show up, often they will agree they owe money and then start in on what difficult circumstances have caused them to get behind. The judge will usually be sympathetic, but you’ll still get the judgement. Sometimes you’ll get the ones who claim as a defense that the landlord wouldn’t fix this or that, in Tennessee, unfortunately, that can be an adequate defense, especially under URLTA. The tenant is required to give you certain notices if they plan to use this defense; if they have not, they should lose. If for some reason the judge seems to be buying into that defense, you could try saying that this is the first you’ve heard of the alleged problem, and if it is material, you’d like a continuance to have the repair item inspected. We’ve certainly had plenty of times where tenants just made up things claiming we wouldn’t repair them. In that case, we have it inspected by a competent professional and then if it’s a bogus claim, have the professional sign an affidavit (sworn written statement) that there is nothing wrong and bring that to court.
- When the judge finds the tenant guilty of unlawful detainer (or forcible entry and detainer if that is the case, such as someone just occupying your property without your permission), they will be given ten days to vacate (the day of the court hearing is not one of the ten days – that count begins on the next day, and if day 10 falls on a weekend they get until Monday). This will be the same in every case, no matter how much the tenant pleads with the judge, or how dire they claim their circumstances are, unless for some reason you are willing to go into an agreed order allowing more time.
- After the ten days are up, if the tenant still has not vacated the next step in the TN eviction process is the last of the eviction forms; you can get a writ of possession (sometimes this is referred to as a warrant for possession). In Tennessee you have to post a plaintiff’s bond for the writ of possession; this is to protect against malicious actions, though it seems strange since you’ve already gone through court and have judgment. Normally writ of possession is done by taking your paperwork showing you have a detainer judgment to the court clerk, pay the fee (yes, another fee) and they will issue a warrant for possession for the sheriff. You then take that to the sheriff, and pay the fee (yet another fee), and the sheriff will dispatch a deputy to oversee the eviction. The sheriff’s deputy is there to enforce the court’s order, to make sure that the tenant(s) are removed from the property, and will stay to ensure the peace while you have the locks changed, property removed, etc. There are laws dealing with a tenant’s property that you want to get familiar with. You might be able to put a clause in your lease which basically says the property is abandoned when there is an eviction. Usually, the tenant’s stuff is just put on the street, and that’s the end of it (if they won’t haul it off themselves). Be aware, though, that there are laws governing tenant property disposal which could affect you. Tennessee has a standard writ of possession form online at http://www.tsc.state.tn.us/administration/judicial-resources/forms-documents/court-forms
- Self eviction is not legal; you may have heard of or thought about doing things like changing locks, cutting off utilities, removing the tenant’s property or the old classic of removing the front door. In a word: don’t. You can be sued, and likely will lose, if you try these or similar tactics. You must go through the judicial process for an eviction in Tennessee.
In our experience, nearly all of the tenants vacate near the end of the ten days after the court order and it will be very rare you have to physically toss them with a writ of possession.
When you look at the entire process, a need not to delay becomes obvious. Don’t wait until the tenant is already a month past when the rent was due to give notice, as this process will take the better part of two months in many cases. You have to give at least 14 (but often 30) days’ notice, then it will typically be another 7-13 days after you file the complaint before the court hearing, and then the tenant gets another 10 days before you can toss them. That’s a minimum of 31 days. Our policy is to post breach notice when the rent is six days past due.
The first time or two you go through this process, seeking legal counsel is highly advisable, but observe and ask questions so you can learn. After you’ve done it a few times, you should be familiar with Tennessee eviction laws where it becomes routine enough you know how to evict a tenant in Tennessee and you can do an eviction by yourself.
Eviction laws in TN, specifically the URLTA can be found online by clicking here.