Is it legal to evict tenants during the winter or during cold spells?
Yes. You can evict tenants at any time, so long as you follow the appropriate state or local laws for eviction. There may be some limits, however, when it comes to removing the tenant physically from a unit during extreme weather.
The eviction process varies by state and city. Generally, it requires that you provide your tenant with an Eviction Notice and then obtain an eviction order from the appropriate court. The local sheriff's department can then enforce this order and remove the tenant from the property if they do not leave on their own. State and local laws generally prohibit landlords from physically removing tenants from their property without assistance from law enforcement and a court order.
Note that some states and cities still have ongoing eviction limits related to the COVID-19 pandemic. For example, New Mexico requires landlords and tenants to go through the courts to resolve the nonpayment of rent cases and provides limited protection for tenants that qualify for relief. Many of these limits are set to expire by the end of 2021 or in early-to-mid 2022, but local COVID-19 case rates may lead to an extension.
Do renters have any special rights to prevent an eviction during winter?
Tenants have no special legal rights to prevent evictions from occurring during the winter. During periods of extreme cold, however, some jurisdictions may refuse to enforce a valid eviction order until the temperature rises.
Often, during extreme cold or other extreme weather, local law enforcement will not physically remove tenants from their units. Additionally, landlords may still face legal consequences for turning off utilities during extreme cold, even after a court issues an eviction order.
Can I shut off utilities in the winter if my tenant owes back rent or payment for utilities?
Shutting off utilities is rarely, if ever, a good idea. Even when tenants are repeatedly delinquent on rent, and especially when temperatures are below freezing, shutting off utilities may lead to severe legal consequences. Every state except Florida and Hawaii has some sort of law or regulation that restricts the ability of landlords and utility companies to shut off utilities, but these laws vary widely.
Bans Based on Temperature
Some states employ a blanket ban on utility disconnection when the temperature drops below or rises above a certain temperature. In Arkansas, for example, it is against the law to shut off electricity and natural gas when the temperature is forecasted to be below 32 degrees Fahrenheit during the next 24-hour period. Delaware has the same ban, and also forbids disconnection when the temperature is above 105 degrees Fahrenheit. Some states, such as Alabama, extend these prohibitions to cover life-threatening situations and extreme weather.
Other states limit such prohibitions to particularly vulnerable populations or to those below a certain income threshold. Indiana prohibits natural gas and electricity disconnections between December 1 and March 15 for tenants who receive public assistance. New Hampshire requires written permission from the state to turn off utilities for senior citizens between November and April. New Mexico forbids disconnection of the utilities of a chronically or seriously ill tenant who has a certification from a medical professional.
Payment Plans and COVID-19
Many states require landlords or utility companies to offer payment plans before shutting off tenants’ utilities. These states may also prohibit doing so during the payment plan. Tennessee and Texas are among these states.
Finally, some jurisdictions have ongoing utility shut-off bans related to the COVID-19 pandemic. New Jersey, for example, prohibited the disconnection of utilities for all tenants until December 31, 2021. California has done the same for water access.
Many states employ a combination of these restrictions. A Rocket Lawyer On Call® attorney can help you make sure you are in compliance with the current laws and regulations in your area.
Can the county sheriff refuse to enforce an eviction because of extreme cold or other weather conditions?
In some cities and counties, such as Washington, D.C., New York City, and Cook County, law enforcement agencies have policies against physically evicting tenants under certain conditions. Additionally, it often takes one to two weeks between asking for enforcement for an eviction order and the sheriff actually doing it. Even when there is no formal policy to delay evictions due to low temperatures, law enforcement may delay doing so at their discretion.
The Cook County sheriff will not enforce an eviction order when the temperature drops below 15 degrees Fahrenheit. Similarly, the U.S. Marshals in D.C. will not do so if the temperature is expected to drop below 32 degrees within the next 24 hours.
Note that when law enforcement refuses to enforce an eviction order due to weather conditions, it is only temporary. The order evicting the tenant will still be valid and, as soon as the weather allows, may still be enforced.
How can I make sure a winter eviction is handled both legally and ethically?
As a landlord, you usually must give a delinquent tenant a chance to correct their lease violations before you start the eviction process. Late or missed rent payments are the most common cause of evictions. If your tenant is late on rent, you may send a Late Rent Notice and consider working out a Rent Payment Plan to recoup the lost money. Giving tenants additional time to pay back rent may have the added benefit of postponing the eviction until the warmer months.
If the tenant fails to pay rent or otherwise continues violating the lease, you might consider serving them with a formal Eviction Notice. The time you must wait between serving an eviction notice and beginning eviction proceedings varies based on your location and reason. Most places require at least a three-day notice, if not more. If it is particularly cold outside, you may wish to give your tenant more time than legally required to find another place to live.
After giving the tenant the eviction notice and waiting the appropriate length of time, you then file an eviction lawsuit in the appropriate court. Many states and cities have specific court systems for dealing with landlord and tenant issues. After you file your lawsuit, you will need to serve the tenant with notice of the filing. Serving the tenant means either yourself or a professional process server that you hire will give a copy of the lawsuit to the tenant. The court will then give your tenant an opportunity to respond and weigh the evidence presented by both sides. It may set a court date for you and the tenant to present your case.
If the court decides in your favor, it will issue a writ of possession that you may ask the local sheriff to execute. In most places, the sheriff will give the tenant a set time by which to vacate your property. After that time, the sheriff will come and forcibly remove them from, or lock them out of, your property. Think twice before deciding to lock the tenant out or remove the tenant yourself. In many places, this is known as a constructive eviction and it is illegal.
To learn more about the legal issues surrounding evictions during winter, reach out to a Rocket Lawyer On Call® attorney for affordable legal advice.
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.