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It’s the Law By HOWARD BOOKSTAFF, Hoover Slovacek LLP , HAA General Counsel
EVICTION Q&A
More on the new process that will apply to evictions filed after January 1. THANKS TO THE multifamily professionals that attended the recent HAA webinar on the new eviction process. Hopefully you’re starting to grasp the nuances of the new process that will apply to those evictions filed on or after January 1, 2026. During the webinar, there were several questions that were asked that time did not allow us to answer. So … I thought it might be beneficial to devote this article to a “Q&A” about the new law. What is the difference between a “notice to pay rent or vacate” and a “notice to vacate”? A “notice to pay rent or vacate” is required to be given if: • the default involves nonpayment of rent; • there is no nonmonetary default; and • the resident was not previously late or delinquent in paying rent before the month in which the notice is given. A “notice to vacate” may be given if: • the default involves something other than nonpayment of rent; or • the resident was previously late or delinquent in paying rent before the month in which the notice was given. If I served a notice to pay rent or vacate in March, can I give a notice to vacate in July if the resident is late or delinquent again? Yes. The new law provides that a notice to pay rent or vacate is required if the eviction is based solely on nonpayment of rent and if the resident was not previously late or delinquent in paying rent. If you gave the resident a notice to pay rent or vacate in March, you would be able to give a notice to vacate the second time that the resident is late or delinquent in paying rent in July. If a resident was late in August, but paid after being given a notice to pay rent or vacate, do I have to give a notice to vacate if the resident is late again in September? No. You would be required to give a notice to pay rent or vacate only if the default was based solely on nonpayment of rent and the resident www.haaonline.org
was not late or delinquent in paying rent to the owner before the month in which the notice was given. A notice to vacate can be given if the default involves something other than nonpayment of rent or if the resident was previously late or delinquent in paying rent. Note, however, that a notice to vacate is not required to be given. If you would like to give a notice to pay rent or vacate even if the resident was previously late or delinquent in paying rent, you may do so. I just served a notice to terminate the lease at the end of the term. After giving the notice, the resident failed to pay rent. Can I move forward with the eviction for non-payment, which will be quicker than waiting for the lease to expire? What presuit notice should be given? In order to pursue the eviction for nonpayment of rent, under the new law, you would need to give a notice to pay rent or vacate before filing the eviction suit. However, if the presuit notice was not given until after the resident holds over, the pre-suit notice can be a notice to vacate since the default includes something other than nonpayment of rent (the resident has defaulted by holding over beyond the end of the lease term). If my property is subject to the CARES Act, do I have to give a 30-day notice after the new law goes into effect? The 30-day notice issue arises under the CARES Act, a HUD rule and an FHFA rule. The CARES Act prohibits requiring the resident to vacate before 30 days after the owner provides the resident with a notice to vacate. The new law provides that if a federal law or rule requires an owner to give notice to a resident before the owner requires the resident to vacate: • an owner that satisfies the notice requirements of the state law is not required to delay the filing of an eviction suit based on the federal requirements; • the federal requirement is not a basis for a court to delay or abate the eviction suit; and • the writ of possession may not be served on
the resident until the period between the delivery of the notice and the service of the writ equals or exceeds the period prescribed by the federal requirement. It is important to note that, in order to create a “forcible detainer” under state law, you would still need to give the required pre-suit notice and not file the eviction until the notice period expires. However, while you would still give, for example, a 3-day pre-suit notice, you would not request the writ to be served before 30 days after the date the notice was given. Although the new law may be beneficial, you need to still be aware of whatever other federal rules may apply to your property, such as the HUD rule or the FHFA rule relating to 30-days’ notice. If you are subject to these rules, the applicable rule would need to be examined to determine how the new law affects your pre-suit notice period. Can I deliver the pre-suit notice by sliding it under the door? The new law allows the following ways to deliver the pre-suit notice: • mail, including first-class mail, registered mail, certified mail or a delivery service; • delivery to the inside of the unit in a conspicuous place; • hand delivery to any resident of the unit who is 16 years of age or older; or • if the parties have agreed in writing, electronic communication, including email, or other electronic means. Consequently, unless you are comfortable arguing that sliding the pre-suit notice under the door would constitute inside delivery in a conspicuous place, you would not want to slide the notice under the door. If I email the pre-suit notice, but the resident says in court: “I don’t have that email address anymore” or “I have a new email address”, what should I do? Pursuant to section 21 of the lease, notice may be given electronically by the owner to the resident if allowed by law. The resident represents in this section that the resident has provided the resident’s current email address and November 2025
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