manager’s misrepresentation, rightly or wrongly. Instead, be accurate. If you didn’t actually file the eviction case yourself, don’t say you’ve filed; rather, inform the residents that you have sent their information to your attorney to file an evic- tion lawsuit. That should still get their attention, don’t worry.
MYTH: WHEN CONSIDERING WHETHER OR NOT TO EVICT A RESIDENT FOR CRIMINAL ACTIVITY, YOU MUST WAIT FOR A CRIMI- NAL CONVICTION TO OCCUR, SINCE EVERY PERSON IS “PRESUMED INNOCENT UNTIL PROVEN GUILTY.”
This language sounds like a myth created by the residents, for the residents, and as such, only benefits the residents. If so, you can rest assured that it is likely poppycock – and believe me, it is. Here’s why.
THE BURDEN OF PROOF: CRIMINAL LAW VERSUS CIVIL LAW
The “burden of proof” is pivotal in any type of trial, whether it is criminal or civil. The burden of proof is the obstacle – the minimum threshold, if you will – that the prosecutor or plaintiff must overcome through testimony and evidence to establish the defendant’s guilt or liability.
The standard for that burden is different depend- ing on what type of case is being heard. If the trial is a criminal trial, then the burden of proof is “beyond a reasonable doubt.” “In criminal prosecutions, where the defendant or prisoner pleads “not guilty” to the criminal charge, such plea invokes the common law presumption of innocence. He enters upon the trial with this presumption in his favor. His plea of innocence places upon the state (the prosecutor) the burden of establishing his guilt, not merely by preponderance of the evidence, but to a moral certainty or beyond a reasonable doubt.” State v. Singleton, 183 N. C. 738, 110 S. E. 846 (1922). What this means is that the proposition being presented by the government – i.e., that the defendant committed the alleged crime – must be proven to the extent that there is no “reason- able doubt” in the mind of a reasonable person that the defendant is guilty. This is the highest
burden of proof and the most difficult to prove.
The burden of proof in a civil trial is far lighter than that in a criminal proceeding. The plaintiff need only prove its case by a “preponderance of the evidence.” Preponderance of the evidence or “by the greater weight” is all that is required in a civil action. Arnold v. State Bank & Trust Co. 218 N.C. 433, 11 S.E. 2d 307 (1940). What this means is that the plaintiff need only prove that more likely than not the incident in question took place or that the defendant is liable. Put another way, a plaintiff just has to show that there is a 51% likelihood that the plaintiff’s version of events is true – as opposed to the close-to-100% “beyond a reasonable doubt standard.”
WHAT ABOUT INNOCENT UNTIL PROVEN GUILTY?
In our world, a summary ejectment (eviction) hearing is a civil proceeding. As such, the burden of proof is a preponderance of the evidence. When filing a summary ejectment based on criminal activity, you need only show that there is a 51% chance that criminal activity took place. This can often be established by an eyewitness account or by an arrest alone, even if the person is never charged or found innocent. As such, to evict based on criminal activity, you do not have to wait until the criminal proceedings have taken place or a conviction has been entered, but you may proceed immediately if you can show by the greater weight of the evidence that criminal activity was afoot. This is still true if the tenant is found innocent of the crime.
Many readers may wonder how someone can be criminally innocent yet civilly liable, but in reality this more common that you may think. Consider, for example, the murder trials of celebrities like O.J. Simpson or Robert Blake. Both men were found innocent in the criminal proceedings for murder of their wives; however, they were later found liable for wrongful death of their wives in the civil lawsuits, resulting in judgments worth tens of millions of dollars. Again, the reason for these results is the difference in the burden of proof for each case, as the burden is far lower in a civil proceeding, while quite high in a criminal
THE BOTTOM LINE FOR CRIMINAL EVICTIONS
Criminal evictions can be a stressful time for a community manager. Residents will claim it is not fair; their attorneys will bully you and claim that their clients are “innocent until proven guilty” and that your eviction is somehow wrong; even some industry colleagues will express discomfort. Don’t believe them; don’t buy into these half-truths that are designed to manipulate landlords for the resident’s benefit. Instead, take comfort in the fact that you have the power to file an eviction lawsuit based purely on a simple arrest or based only on eyewitness accounts of a crime taking place. The resident may convince a criminal judge or jury that they are innocent, but they will have a far harder time convincing a magistrate that they are not liable to you for the loss of possession of their apartment.
More To Come . . .
I hope you enjoyed this article and that this infor- mation will empower you to make better, more informed decisions in managing your communi- ties. Stay tuned to future issues of the Apartmen- tor, where we will discuss other landlord issues.
Author’s Note: The information contained in this article should not be construed as specific legal advice for your exact situation. Before acting on any information contained in this article or should you have any questions about the issues raised in this article, you should first consult with your attorney. Also, Landlord Lawyer is not meant as a replacement for your own best business judgment. A “legal answer” may not always be the “best” answer for you or your communities, and we applaud and celebrate any creative solution to a problem that avoids litiga- tion, reduces your exposure to risk, encourages positive relationships with your residents, and improves your bottom line.
the ApartMentor May/June 13
proceeding. The plaintiffs in both civil cases need only to prove that – more likely than not, a 51% chance – the men did commit the murders; they did not have to show that the men committed the murders beyond a reasonable doubt to col- lect a multimillion dollar judgment.
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