Property

A landlord always wants to find the perfect tenant: one who pays on time every month, keeps the unit clean, does not cause trouble with the neighbors. Unfortunately, those people are hard to find. Too often people will present themselves that way when they are looking to rent an apartment, but once they move in they don’t seem to care about anything. And a landlord who needs to get a tenant out needs to follow the law, or risk even more trouble.

A smart landlord will have a good lease that can be used to limit the damage of a bad tenant. The lease should be clear in what the rules are and what behavior is not acceptable. The restrictions need to be reasonable, and the lease needs to be clear as to the consequences for breaking the rules. Apart from the rent obligation, tenants can be required to keep the unit clean and in good repair. While a security deposit will help if a tenant has caused some damage, if you have a tenant that is causing considerable damage, you will want to get them out. As to cleanliness, it is one thing if there are just clothes everywhere, but another if there is excessive food waste which can bring insects and rodents. Other common issues are tenants who are noisy late into the night, smoke indoors or harass other tenants.

If attempts to resolve the problems with the tenant fail, you can begin the eviction process. It is crucial that you follow the procedure set up in the law, otherwise you will end up wasting time. A crucial point here is that if the tenant is still under the terms of the lease, and not a hold-over / “tenant at will,” then the terms of the lease control. If the original lease expired, and you did not have the tenant sign a new lease, then the state’s regulations control the process.

The first step is to serve the tenant with notice that you are terminating the lease, which is called a “notice to quit”. This goes back to having a good lease – as the lease will dictate how many days, and how you need to give the tenant notice before they should be out. If you are in a tenant at will situation, then the State’s regulations dictate how and when a notice to quit needs to be served.* If the tenant has not vacated the unit by the time you have provided in the notice, then you need to begin a legal proceeding known as a complaint for forcible entry and detainer.

The District Court in your jurisdiction is where you will need to begin the forcible entry and detainer proceeding. The Courts have set days available for the hearings, and you need to serve the tenant the required amount of time before the hearing.* At the hearing, if the tenant does show up, the Court will likely have you attempt mediation with the tenant and a Court sponsored mediator. You should make a good faith effort to come to an agreement about when the tenant will move out, or if the problem you are having with the tenant can be resolved. If an agreement cannot be reached, then you will go back and wait to present your case before the judge.

At the hearing you should be prepared with all of your records and paperwork to make your claim. The tenant can make their arguments as to why they should not be evicted. The judge will decide the outcome, but may try to get you and the tenant to agree on something. At that point the judge will grant the eviction or not.

If the eviction is granted, or if the tenant fails to show resulting in a default, then a writ for possession will be issued. It takes a few days before the actual writ is issued,* and then it needs to be served on the tenant. Once the writ has been served, and the time expires for the tenant to be out (currently 48 hours), then they are considered trespassers.

Overall this can be a long process, and mistakes will make it longer. It is best to work with an attorney who can help you guide through it, and advice you based on the specifics of your situation. My office is happy to assist you with preparing the right lease, or eviction process.

* As these regulations and timeframes may change over time, I am purposely not providing the details here.

The co-chairs of the Legislature’s Judiciary Committee have asked the MSBA to facilitate the collection of information about the exercise, or threatened exercise, of eminent domain power by both public bodies and those entities authorized to condemn property for specific uses. The Judiciary Committee has heard numerous complaints about the level of compensation when a government or a utility displaces a business. In addition, individual landowners have testified about their unhappiness with the process and their treatment when utilities prepare to exercise their statutory eminent domain power.

The MSBA has been asked to convene workshops to help identify specific problems and concerns with eminent domain laws and practices that landowners and their legal counsel have faced in the past and see looming in the future. If you would like to participate in such an effort, or have information you would like to share with the Judiciary Committee, please contact Julie Rowe (jrowe@mainebar.org).

The story of the taking of the Sail Inn by eminent domain has been published. You can buy the book on Amazon.com.

The Sail Inn Restaurant, owned and operated by the Dyer family since 1948, was taken by the state of Maine under eminent domain laws in November 2003.

The Dyer family’s story is now out in a book called “The Taking,” by Dick Dyer, of Winthrop.

The state claimed the restaurant and the five acres on which it stood. A settlement regarding how much the property was worth or if the property had rightfully been taken had not yet been reached. When it was eventually settled, Maine Department of Transportation legally could not comment on details of the case, which includes confirming or denying events, said Ray Quimby, chief of right of way operations at MaineDOT.

via Morning Sentinel.

The Northern New England Passenger Rail Authority, which is the  state agency that runs the Amtrak Downeaster train, is looking to acquire land in Portland to build a service building.   The Portland Press Herald reports that the owner of the land does not want to sell the land because they have future plans for a residential development on the site, and the building would be incompatible.

The Authority has the power to invoke eminent domain through the Passenger Rail Service Act.  It seems unlikely that the property owner will be able to prevent the taking of the land, but there will certainly be a dispute over the value of the land.  The owner of any land that is taken by the State must be compensated, but the actual amount of compensation is often highly disputed.

Currently the land, known as Thompson’s Point, is used mainly for industrial type businesses, though its location does suggest potential for residential development.  The Authority will argue that compensation should be limited since they are only taking a small piece of  the land.  The owner’s concern is that the structure will be right next to the road that is the only access to the rest of the property, therefore impacting the value of the entire property.  However, the law only considers property taken if it is actually acquired, or it loses all economic value.  So even if the land the Autority takes is valued as residential property, only the amount of land actually taken for the building will be compensated for.

Dale Henderson is continuing to contest the ownership of the old railroad bed on his land in Hancock and Steuben.   He is now blocking access to a trail that was created on the old railroad bed.   As was reported earlier, Henderson is claiming that ownership of the land the railroad tracks were on should have reverted back to the previous owner as soon as the railroad company stopped using it.

The landowner recently erected barricades to stop users from traversing his property. In the town of Hancock, Henderson put up a berm on the tracks at one end and a stone wall at the other end. On a smaller piece of land in the Washington County town of Steuben, he built berms on both ends of the 50-acre property where the tracks run through.

Accompanying the barricades are signs that read “This portion of the railroad bed is closed. No trespassing. Violators will be prosecuted.”

via Bangor Daily News.

The owners of land taken for a service plaza want more money for the land the state took by eminent domain.  Kennebec Journal:

So far, the former landowners have been awarded almost $1 million for the 26 acres between the Maine Turnpike and Interstate 295.

The Maine Turnpike Authority used eminent domain to acquire the 26-acre former truck stop in 2007.  …more

FostersNews.com:

In 2007, the Legislature passed the $5 million Riverfront Community Development Bond and Maine voters gave it their own stamp of approval in November of 2007.

The town will largely put the $675,000 toward the reinvention of the mill at 61 Washington Street. In September, the town took the mill by eminent domain from its previous owner, local developer Patrick Fagan, whose dreams of revitalizing the property for commercial and residential purposes ran into financial difficulties.

The Times-Record reports that the State has sent the Wiscasset bypass route plan to the Army Corps of Engineers for approval.  The building of the road will likely require the State to take property by eminent domain.

Construction of the bypass would force the state to move 26 residences and 13 businesses, claiming those properties through eminent domain proceedings.

“One of the reasons this bypass has taken many, many years to come to a conclusion is there are always impacts, and they’re not always good,” said Carol Morris. “It’s never good to have to take people’s properties and lands. It’s never good to impact wetlands.