[rvdsid]

I am about to evict a tenant who owes about $3600 in rent and late fees, I have sent the 5 day notice to pay up or get out, and he has been subleasing when the contract stated it was NOT allowed. This is a salon, and my question is since it will take at least 15 Days to get him out, the subleasee wants to continue where he is at. And since my tenant has been making money off MY Property and paying me Late Eeeevery month, can I enter into a New contract with this subleasee legally in the meantime while I am evicting this other guy?

Thanks,

Scott

[AK lawyer]

... can I enter into a New contract with this subleasee legally in the meantime while I am evicting this other guy?
....

Sure. I don't see anything wrong with that.

[rvdsid]

Thank you very much!

Also, being that he turned it into a salon... (added sinks,mirrors, hot water heater, hair stations,replaced carpet with tile) what fixtures/add-ons can he legally remove upon eviction or are they now considered part of the structure??


Scott

[AK lawyer]

Thank you very much!

Also, being that he turned it into a salon....(added sinks,mirrors, hot water heater, hair stations,replaced carpet with tile) what fixtures/add-ons can he legally remove upon eviction or are they now considered part of the structure???

If they are fixtures he cannot remove them when he is evicted. But if you think he might try, get the court to specifically address the issue at the eviction hearing. I would ask for a writ, addressed to any peace officer, directing the peace officer to stop him from removing specified fixtures if you become aware that the tenant is in the process of doing so.

[rvdsid]

What if he is removing the items now... prior to the eviction date?

[AK lawyer]

Then you need to file for a temporary restraining order immediately.

[rvdsid]

Well, here in SC, I just went to the magistrate and they say I can't file a restraining order unless there has been 2 prior instances and then I can file.

Also, they say that since he installed the sinks, the fans, the hot water heater, etc. that he can remove those items... and theoretically put the building back as it was prior to him renting. But, according to the Wikipedia definition he cant, see below.

The law regarding fixtures can also cause many problems with property held under a lease. Fixtures put in place by the tenant belong to the landlord if the tenant is evicted from the property. This is the case even if the fixture could have legally been removed by the tenant while the lease was in good standing. For example, a chandelier hung by the tenant may become the property of the landlord. Although this example is trivial, there have been cases where heavy equipment incorporated into a plant has been deemed to have become fixtures even though it was sold as chattels.


So, what is the case? What can I do?


Thanks,


Scott

[AK lawyer]

Well, here in SC, I just went to the magistrate and they say I can't file a restraining order unless there has been 2 prior instances and then I can file.

Also, they say that since he installed the sinks, the fans, the hot water heater, etc. that he can remove those items ...

Looks like the magistrate is confusing a temporary restraining order (a prelude to a preliminary injunction and available in a civil case) with a domestic violence restraining order. They are two different things. Normally magistrates don't have any involvement in the former.

Perhaps that's why the magistrate seems to be a bit rusty in the area of commercial leases and fixtures.

[rvdsid]

Well, its actually the "Gate Keepers" his two women helpers who are experts on LAW! Anyway, how would you suggest I accomplish this?


Thanks,

Scott

[AK lawyer]

A civil case is commenced by the filing of a complaint and the issuance of a summons. In a case in which equitable relief, such as an injunction is requested (and a TRO), I would at the same time file a motion for a TRO, a memorandum in support of the motion (explaining the applicable law on TROs in your jurisdiction: basically why you would be irreparably damaged if you don't get a TRO, and how the particular facts fit that law), an affidavit or affidavits setting forth the facts in favor or a TRO, and a TRO for the judge to sign. I would also file similarly a motion, memo, affidavits, and lodged order for a prelim. Injunction (injunction necessary after hearing but before a full-blown trial). Finally, get all of this served on the defendant by a process server. The judge is supposed to give you the TRO without a hearing and a prelim. Inj. Hearing is scheduled. See your court's civil rules for the details. What I have given you is basically how the Federal Rules of Civil Procedure go. Many courts have rules which are versions of the FRCP, and others have similar rules of procedure.

I guess it goes without saying, it would be best to hire an attorney to do all of this.

[rvdsid]

Well lets just say I have a good idea that they will try to say that the sinks, mirrors, barber chairs etc, are "Trade Fixtures" and what do I say to this?
And as far as the hot water heater they installed to have hot water to wash hair? Are these prima facie?
Also, I never renewed his one year contract with ran out in September... so, he is on a month to month basis ~ if that matters.

Scott

[AK lawyer]

Well lets just say I have a good idea that they will try to say that the sinks, mirrors, barber chairs etc, are "Trade Fixtures" and what do I say to this?
And as far as the hot water heater they installed to have hot water to wash hair? Are these prima facie?

Could be. On a item-by-item basis. But they will have to remove them without causing damages to the premises.

Also, I never renewed his one year contract with ran out in September...so, he is on a month to month basis ~ if that matters.

Doesn't matter.

Except that, since this is a commercial lease as opposed to a residential one, the notice requirement might not apply.

[rvdsid]

Now the magistrate is saying that I can pay $50 MORE and file a Destraint?

Also, if I bought a mobile home that is in my park and the previous owner & I had taken these people to court to evict because they are always late and they didn't show up, and I just took them to court to evict (we didn't tell the tenants that I bought the home, so she could get her money) and the judge ruled in their favor Again, even though they didn't show up again, and said that I had to offer a contract and then evict after 30 days. Does the common law state that I have to do that??


Thanks,


Scott

[AK lawyer]

Now the magistrate is saying that I can pay $50 MORE and file a Destraint?

What state are you in? Because, again, I am doubtful that this "magistrate" knows what he/she is talking about. Distraint involves the seizure of personal property in order to force the payment of rent. It appears that trade fixtures might be exempt as being "privileged goods".

Also, if I bought a mobile home that is in my park and the previous owner & I had taken these people to court to evict because they are always late and they didnt show up, and I just took them to court to evict (we didnt tell the tenants that I bought the home, so she could get her money) and the judge ruled in their favor Again, even though they didnt show up again, and said that I had to offer a contract and then evict after 30 days. Does the common law state that I have to do that???

You have confused me. This appears to be an entirely separate matter. If so, you should probably start a new thread on this.

You joined in the eviction action with the prior owner and the court dismissed you as a plaintiff? Seems right if you had failed to give due notice to quit.

[rvdsid]

South Carolina. This guy owes me @$3600 in late fees, rent etc. And the judge said that because it was commercial I couldn't do the Restraining order, and must have start researching, and later had one of his flunkies call me and say I could do the Distraint. I told him that I didn't want him removing any fixed items until we had the hearing. Now, I did and eviction and a summons for the money owed.

Scott

[AK lawyer]

South Carolina. This guy owes me @$3600 in late fees, rent etc. And the judge said that because it was commercial I couldn't do the Restraining order, and must have start researching, and later had one of his flunkies call me and say I could do the Distraint.. .

Ok.

I did a search on "distraint" in the SC statutes and came up with this:

Query - South Carolina Legislature Online

Interesting. As I said, I suspect that the magistrate is simply not familiar with standard TRO/ preliminary injunction practice. Or it may very well be that those things are indeed beyond the jurisdiction of magistrates.

Note this section in particular:

SECTION 27-39-360. Remedy of distress deemed cumulative. [SC ST SEC 27-39-360]

The remedy of distress shall be deemed cumulative with respect to any other remedy for the collection of rent.

... I told him that I didn't want him removing any fixed items until we had the hearing. Now, I did and eviction and a summons for the money owed.

This last sentence is a bit unclear. So, is a predistress hearing scheduled or not? Looks like you may need a distress warrant issued at that hearing.

[rvdsid]

Okay, his vacate date was yesterday, the guy he had rented an office space to that was basically paying his rent, called me to show me what the tenant had done. He pulled up hard wood flooring he had put down in an area that used to be an enclosed office, which he changed to an open booth area (12' x 25'). He had enclosed an area around the main sink and installed a hot water heater, on the back side of that wall he installed 3 sinks to wash hair in. He has now Tore down that wall, removed the Whole section, door, and all the sinks, and removed the Hot Water heater. He has removed all the fans, he installed. I had a policeman escort me last night as I changed locks and I pointed out the damage to him.

Okay, here is where I need help... I went to the judge with what you said about the TRO and his little smart *** helpers confused it with the criminal type and sent me on my way. I called the county sheriff's department and they sent me to the local police and they said that they couldn't do Anything.
So, the next day I went back to the judge and he claimed he couldn't discuss the case, and I said I had no problem with this guy removing what the COURT deemed to be removable and asked why I couldn't get the TRO? And he proceeded to tell me about if Walmart leased a building and decided to move they could remove basically everything they had installed and inferred to me that it was ludicrous for me to insist that he should leave what he had installed. I argued your point and said I could be wrong... but I would have to do a little more digging. The next morning his little helper called saying I could come do a distraint, and when I went to see him they said that he was busy, he didn't have time, he had already talked to me when "he shouldnt have" Blah, Blah, Blah! This guy doesn't comprehend the word HUMBLE, if you know what I'm sayin'!

According to the Commercial Lease Trade Fixture Laws at Legalmatch.com, for the tenant to be able to remove the Trade Fixture it must be:
1.Necessary for the business of the tenant
2.Removable without damage to the property
3.Removed in a timely manner

Otherwise, becomes property of the owner.

In the contract he signed, under the Default section... it states, "If the tenant shall fail to pay rent when due, or perform any term hereof, after not less than 3 days written notice of the such default given in a manner required by law, the Owner, at his option may terminate all rights of the tenant hereunder, unless Tenant within said time shall cure such default.

Now, I tried to protect myself and my property thru legal means and the judge prohibited me from doing this and now, I hold him somewhat accountable for what happened. So, I did the summons ($3600) the same day as the RTV and now this damage to the property will take Quite a bit more Money to get it rentable again. What can/should I do?

And this guy had been subleasing to this other guy for $500 a month, when rent was $650 and he was making money off MY Property, when the contract states, "Tenant shall not have permission to assign this agreement or sublet a portion of the premises without the owner's written approval.
He had been paying this guy $500 a month since March, can I sue for that money? I wouldn't be, all pissy about that ~ but when he was being evicted he still collected two weeks rent from this guy, off my property when he wasn't paying me!