I represent a lot of commercial landlords, and, when there’s a payment default and they want to evict a tenant, there’s an early strategy question that they all face: (1) Do we sue for possession only; or (2) Do we sue for money and unpaid rent (through the date of the court hearing)?
It’s a nuanced question. Most landlords choose # 2, especially since detainer lawsuits are filed in General Sessions Court and, due to a little-known exception, you can take a huge money judgment in “small” claims court.
But, they’ll generally say, what about the unpaid rent for time periods after we get a judgment and evict them from the property? That’s a second lawsuit. Isn’t there a rule against two lawsuits on the same issues?
As you’d expect, COVID-19 and the related travel restrictions have had a catastrophic impact on the travel and hospitality industry. In Nashville, rental income for once wildly-lucrative Airbnb properties evaporated in an instant.
In Nashville (and in Memphis), Stay Alfred had a number of buildings where it controlled nearly all the units, such as the shiny 505 Tower in downtown Nashville, as well as other prime locations in both cities. By April, Stay Alfred had left those buildings entirely.
Now, it appears that Sonder USA, Inc. may be headed toward a similar fate. Sonder manages over 12,000 rental units in 28 cities, generally for short and medium term rentals. In its most recent efforts to obtain private equity, Sonder provided a valuation of $1.3 billion.
Yesterday, in Davidson County Chancery Court, a Georgia developer filed a breach of contract lawsuit against Sonder over its failure to take possession of 101 units in a residential building in Nashville’s Hillsboro Village, located at 1620 21st Avenue South.
In this deal, the Plaintiff-developer agreed to purchase the 101 units in December 2019, many of which were already rented out to long term tenants. As those existing tenants either left or were forced out, the developer would then lease those units to Sonder, which Sonder would then manage as short term rentals. Under the Lease, Sonder would pay the developer annual rent of “$2,641,387.32.”
What could go wrong in Nashville real estate in 2020, right?
Per the Complaint, in April 2020, when Sonder was scheduled to take possession of the first batch of units, Sonder immediately went into default. Sonder claimed defenses of force majeure and impossibility of performance and frustration of purpose.
When Sonder failed to take possession or pay, Plaintiff filed this action, seeking $2 million in current and future rents. This is going to be an interesting case, since the parties seemed to go into this venture, jointly, in December. If so, then why does all of the risk shift to the lessor-defendant? Does the nature of the business relationship mean that Plaintiff and Defendant both should bear the risks?
I live in Hillsboro Village, so this one is a bit personal for me. This is my neighborhood, which is a bustling area of families, Vanderbilt workers (school and hospital), and college kids. It’s a residential community, not a vacation or party destination.
Housing is scarce. And getting more and more expensive.
As somebody who has lived in this neighborhood for over ten years, it’s irritating that these out-of-town companies created a business model to convert limited, scarce housing assets into STR properties by forcing residents out of their leases and out of the building.
Think about if you’re a grad student or doctor at Vandy, and you love your apartment. It’s right there next to your school/work, next to Luke Bryan’s steakhouse (which really is delightful), and next to Dragon Park. Sounds great, right? But, when you get to month 10-11 of your lease, you get a notice from the new owner that they want you out; the entire building is converting to vacation rentals.
I’m sure the developer would say that the “market dictates the highest and best use of property.” Let’s hope our new economy sends its own message to these opportunistic developers who want to convert our residential space into a hotel / vacation rentals. One that our local government is clearly afraid to send.
Maybe an empty building where all the long term tenants were forced out will send that message.
Posting the proper bond in an eviction appeal in Tennessee is confusing and, sometimes, very expensive. Remember, though, if a landlord is granted an eviction judgment, the tenant can still have a valid appeal, even if the tenant doesn’t post the possessory bond required by Tenn. Code Ann. § 29-18-130(b)(2).
The Tennessee Court of Appeals issued an opinion yesterday, affirming this line of decisions, in Thomas v. Millen, W2019-00086-COA-R3-CV (Tenn. Ct. App., Dec. 19, 2019). This case cited the Court’s own recent, similar opinion at Belgravia Square, LLC v. White, No. W2018-02196-COA-R3-CV, 2019 WL 5837589 (Tenn. Ct. App. Nov. 7, 2019).
Long story short, the possessory bond is not jurisdictional, meaning the circuit court has jurisdiction to consider the issues, and an appeal remains valid despite the failure to post the § 29-18-130(b)(2) bond.
As a practical matter, most eviction appeals will die once the tenant loses the right to possession. But, not all. In that situation, the tenant could be dispossessed of the property, but the tenant can still challenge the landlord’s rights and, if successful, seek monetary damages against the landlord if the tenant wins.
That type of fight does happen. I’ve had an opposing party / tenant lose in Sessions, appeal to Circuit, lose possession in Circuit, but continue fighting my matter…all the way to the Supreme Court. The United States Supreme Court.
Real Estate is hot in Nashville. That’s not a news flash. In fact, unless you were burned in the economic downtown, you’ve probably always thought that real estate is a safe investment, either has an appreciating asset or as an income producing asset.
With high-end real estate, the income possibilities in this current market are endless. Short term rentals to tourists on AirBNB. Long term leases to health care executives. Leases to country music stars or professional athletes.
Well, one Nashville couple has learned the hard way that leases to star football players may require a greater security deposit.
In a lawsuit filed against former Tennessee Titan running back Zach Brown, a landlord for rental property has sued in Nashville’s Davidson Chancery Court (Rental Lawsuit), alleging failure to pay rent. After they were awarded a judgment in a prior detainer action, they were surprised to find the property in terrible condition, the lawsuit alleges.
The $59,286.85 in damages alleged includes claims of: animal teeth marks on staircases and doors; stains on carpet; “damage to the walls by what appears to be repeated throws of footballs and darts;” holes in the wall; and door frame damage “from where it appears a locked door was forced open.”
These are just allegations, but, long story short, a property owner opens the door to deterioration and damage when he or she rents to a stranger. There’s no such thing as easy money, and the landlord / tenant model has its fair share of risks.
But, the ability to get a continuance in detainer actions isn’t absolute. Tenn. Code Ann. § 29-18-118 provides that the “general sessions judge may, at the request of either party, and on good reason being assigned, postpone the trial to any time not exceeding fifteen (15) days.”
In eviction actions, a landlord isn’t getting paid, so the delay costs the landlord both time and money.
No plaintiffs, however, are as eager to get to court than landlords. A common question I get is: What is the quickest court date a landlord can get?
The answer is in Tenn. Code Ann. § 29-18-117, which provides: “The officer serving the warrant shall notify the defendant of the time and place of trial, the time not to be less than six (6) days from the date of service.”
So, in order to have a valid eviction lawsuit, you have to provide–at a minimum–six days notice from the date of service of process.
Note: This timeline is for commercial property evictions. Residential evictions are governed by the Uniform Residential Landlord and TenantAct , and that is it’s own blog post.
Landlording is a hard business. If you don’t think so, wait until the first time you have to sue your tenant to evict them.
In Tennessee, the process is done by a “detainer” warrant, and it’s a full blown court proceeding, which is generally done in General Sessions Court.
In these proceedings, the landlord wants the proceeding resolved as soon as possible, while the tenant wants to stretch out the proceeding as long as possible. Who doesn’t like to live rent free, right?
Tenn. Code Ann. § 29-18-118 provides some protection for landlords. That statute allows the judge to continue a matter, but only to a time not exceeding 15 days.
The only exception the statute provides that would allow for a longer period of time is: (1) if the parties agree to a longer time; (2) the 15 days ends at a time when there’s no court; or (3) the party asking for the continuance pays “the costs.” (Here, the costs means they pay, at the time of the request, the rent due for that period, plus any other amounts due/incurred during that period.)
So, the tenant might get a delay–note that the statute isn’t absolute, it says “may”–but there’s an absolute limit to the delay. No Tennessee case–published or unpublished–provides any exception that allows for a longer continuance to this statute.
Across the country, lenders are fighting claims from borrowers that the lender’s foreclosure on real property was defective. In response, courts will sometimes entertain an examination of the specifics of the foreclosure. Regardless of the outcome, the lender is invariably faced with delay in obtaining a deficiency judgment or the costs of litigating these issues.
On January 31, 2011, the Tennessee Court of Appeals issued a decision finding that such claims by a borrower will not be considered, where the lender has filed a post-foreclosure unlawful detainer warrant in General Sessions Court and obtained an eviction judgment. If the homeowner does not raise the defective foreclosure in the General Sessions Court, then the decision is “res judicata” on any subsequent action.
It’s a a quick and cheap way to clear title on property. Also, you serve the detainer warrant by nailing it to the door of the property — no chasing the elusive occupants around the world trying to get service.