Learning to do Evictions Overview
An eviction can be very costly if you screw it up.
We cover a great deal of information in this e-course but we try to present it in an easy to follow format and in plain every-day language. Some points will be covered several times in slightly different ways. We repeat the fundamentals at almost every appropriate step to help assure that they stay with you.
You buy a property, spend months of hard labor, and even more money fixing it up. You do everything you have been taught on this RHOL site to screen for a good tenant. But something goes wrong and you have to evict. What do you do first?
Restrain yourself. Vent your anger at a health club or on a long walk. Remember, this is strictly business.
"Self Help" evictions are usually prohibited by law. The only way a landlord can regain possession of a rented residential property is by going through the legal process to terminate the tenancy, which includes a writ for possession signed by a judge.
Physically removing a tenant and his possessions from residential property, without an officer of the court is not only illegal, it is dangerous. Self help evictions have led to assaults and even death. They are almost guaranteed to lead to lawsuits. DON'T DO IT!
Evictions require a legal due process intended to guarantee the rights of all parties. The time involved and the formal court setting also helps defuse the emotion inherent in most evictions.
THE EVICTION PROCESS
The actual eviction process is straightforward. However, bear in mind that each state eviction laws may be different, which means that time limits and the documents that are required to be filed will differ. The following is a simple overview.
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Serve the initial pay-or-quit notice (3-day to 10-day, according to state statute).
File the unlawful detainer (eviction lawsuit) action forms.
Serve the eviction summons and complaint.
Show up as scheduled in appropriate court for hearing.
Tell your story to the judge and, if the tenants do not show, get a judgment to collect the monies owed to you and an an order to restore possession of the property to you.
Have final eviction order (writ of restitution), with the date of physical eviction, served on the tenants.
Have the appropriate law enforcement agency evict the tenants on the date. If it gets this far, you may have to pay someone to remove the tenants' belongings. Some states allow the tenant's property to be simply placed out near the street, but some others require that the landlord put them into storage for later disposition.
After the tenant and their property are out of the premises, the law enforcement officer will give possession of the property back to you.
Change the locks and start the cleaning and sometimes renovating necessary to re-rent your property.
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Carefully screen your next tenant to avoid another time-consuming and expensive eviction.
Emotion Runs High
A landlord is typically outraged at the tenant's broken promises and the tenant often has an understandable fear of being removed from their home with no place to go.
An eviction elicits a great deal of emotion from all parties that can lead to dangerous confrontations. That is a one very good reason to obey the law and avoid self help evictions. Use the system to settle differences. Read more on the dangers of Self Help. As you read above, landlords are required to first notify the tenant of their intent to terminate and evict. The NOTICE required usually depends on the reason for the eviction and can vary considerably with the time required to cure a violation and form a notice must take.
Most state statutes contain substantially the same language dealing with the right to possession. The following is from Alabama. ( You can check yours from our State Landlord tenant Law pages.)
Demand for premises: In all cases where a tenant shall hold possession of lands or tenements over and beyond the term for which the same were rented or leased to him, or after his right of possession has terminated or been forfeited, and the owner of the lands or tenements shall desire possession of the same, such owner may by himself, his agent or attorney-in-fact or attorney-at-law demand the possession of the property so rented, leased, held or occupied; and if the tenant refuses or omits to deliver possession when so demanded, the owner, his agent or attorney-at-law or attorney-in-fact may go before the district court in the county in which the land lies, and make oath of the facts.
If after notice, the tenant doesn't move or correct the lease violation, by paying the rent, cutting down the noise, or finding another home for the unapproved new pet, the landlord can file a lawsuit to evict. That action is usually called a Summary Proceeding, Unlawful Detainer or UD lawsuit.
The process of removing the tenant from your property and collecting any money due you can take weeks or months depending on your state law and whether or not the tenant contests the eviction in court. However the total time in an uncontested eviction shouldn't be much more that four to eight weeks with six being about average in most states. Of course, if the eviction is contested, particularly for some valid reason, the process could take much longer. See a California landlord's Time Line Example.
REMINDER: When a tenant is not paying rent while contesting an eviction, a landlord can usually ask the court to require that the rent be paid into an escrow account. If the tenant does not pay on time, the court will usually award a judgment to the landlord.
Each state has its own specific laws and procedures for evictions. Most states also have established forms, with court-approved language, which must be completely filled out and filed with the both the court at the correct time intervals, and served on the tenant.
Any activity that might be actual or perceived as illegal, threatening, humiliating, abusive or invasive of a tenant's rights or privacy can give rise to a lawsuit against the landlord and property manager. If you are tempted to take the law into your own hands to force or scare a troublesome tenant out of your property --don't do it! Threats, intimidation, utility shutoffs or attempts to physically remove a tenant are illegal and dangerous. If you resort to them, you may find yourself in violation of state law and subject to severe penalties. You may also be sued for such personal injuries as trespass, assault, battery, slander and libel, intentional infliction of emotional distress and wrongful eviction.
We all know landlords who have broken all of the commandments listed above, and sometimes they have even gotten away with it. But their actions have contributed significantly to the multitude of onerous laws that law abiding landlords are now burdened with.
There are certainly street justice people in our society, as both landlords and tenants, who seem to have their own methods for settling disagreements. One old-time landlord in our town was known to stop-up the toilet on purpose when the tenant was away, then refuse to fix it until the rent was paid. He even planted marijuana in the apartment of a problem tenant, then called the police. Those selfish, short-sighted solutions have cost every other decent landlord thousands of dollars in government interference and regulation of the rental housing business.
Avoid self-help
Only a few states still allow self-help evictions. (Physically removing a tenant on your own). Where self-help is legal, it must be exercised within a reasonable time of termination of the lease and must be done without harming the tenant and with reasonable care to avoid damaging the tenant's personal property. Most jurisdictions, however, require you to use the statutory remedy known as forcible entry and detainer or unlawful detainer. There are exceptions in some states where there is abandonment. Many jurisdictions treat commercial leases differently under the law and may specifically allow self-help. Make absolutely sure you know the law in your jurisdiction before relying on self-help.
Even if your lease language allows you to terminate a tenancy without notice, you must comply with local regulations to get a court-ordered eviction. Statutory remedies for eviction vary from state to state, but there are common features. They usually set out very detailed requirements for landlords who want to end a tenancy. Each state also has its own procedures as to how termination notices and eviction papers must be written and delivered ("served"). Different types of notices are often required for different types of situations. Although terminology varies somewhat from state to state, there are basically three types of termination notices:
Notice to pay rent or quit
Statutes generally require you to provide a "notice to quit" a minimum number of days before you can terminate the lease and begin a lawsuit for possession. Pay Rent or Quit notices are typically used when the tenant has not paid the rent.
Comply with statutory form.
State statutes generally require that the notice be in writing and contain certain specific information. You must comply precisely with the requirements of the statute. Overstating the rent due may invalidate the notice. Some state statutes now require that the notice be in both English and Spanish. Others may require that certain language be included.
Timing
Statutes specify the number of days in advance of termination that notice must be given. The notice is usually one rental period or 3 to 10 days for non-payment of rent.
Right to cure
Statutes may provide that the tenant has a right to cure the default or breach within a certain number of days after notice, so there must be a written record of when notice was given.
Method of notice
You must give notice in a method permitted by the statute. Hand-delivery is best, but some jurisdictions allow you to mail the notice or leave it at the tenant's usual residence. The law may require a sworn and notarized affidavit from the person who served the tenant.
Rent control
If the premises are subject to rent control, you may need to get a certificate of eviction from the Rent Stabilization or Rent Control Board before you can file an unlawful detainer action.
Comply with the lease provisions; Cure or Quit
Leases often require notice of breach and specify the form, timing, and manner of service, as well as the tenant's right to cure the breach. If you comply with the statute but don't comply with the lease, you probably won't be able to get an eviction. Cure or Quit notices are typically given after a violation of a term or condition of the lease or rental agreement, such as a no pets clause or the promise to refrain from making excessive noise. Usually, the tenant has a set amount of time in which to correct, or "cure," the violation.
Unconditional Notice to Quit
Unconditional Quit notices are just what they say they are. The tenant is ordered to vacate the premises with no chance to pay the rent or correct the lease or rental agreement violation. In most states, unconditional quit notices are allowed only when the tenant has:
1. been late with the rent on more than one occasion.
2. a repeated and significant lease or rental agreement violation.
3. serious waste or damage to the premises.
4. engaged in illegal activity, such as prostitution or drug dealing on the premises.
Most state statutes require the type of landlord tenant notice that is relevant to the specific situation. However, a few states allow landlords to use Unconditional Quit notices for almost any kind of violation, including late rent or violations of rental clauses. Those violations would require Pay or Quit or Cure or Quit notices in more liberal, tenant-friendly states.
Landlords must follow state rules and procedures exactly. Otherwise, there will be delays in the eviction process while the landlord re-serves his notices or re-files his court papers. Failure to stick to the rules can sometimes lead to a dismissal or even the loss of the lawsuit, no matter what the tenant violation.
There are several reasons why most courts insist on strict compliance of landlord tenant eviction statutes. An eviction case is usually a very fast legal procedure; often called a Summary Proceeding. Consequently, legislators have been extra careful to see to it that the tenant gets adequate notice and an opportunity to respond. Most judges insist on strict and unwavering adherence to the rules because the tenant's home, and often that of their children, is at stake. For many modern judges that is arguably more important than a civil case concerning someone's money or business.
Most rent control or stabilization cities go far beyond the state statutes that usually allow termination of a "at will tenancy at the will of the landlord or tenant, and require the landlord to prove a legally recognized reason, or just cause, for termination and eviction of the "at will" or month-to-month tenants.
Time is of the essence
As we discussed above, even if a landlord properly brings and conducts an eviction lawsuit for a valid reason, there is no assurance of a quick victory. If the tenant decides to mount a defense, it may add weeks -- even months -- to the process.
The way that the landlord has conducted business with the tenant may also affect the outcome: A tenant can point to a landlord's behavior, such as retaliation, that will shift attention away from the tenant's wrongdoing and diminish the landlord's chances of victory. Simply put, unless the landlord thoroughly knows her legal rights and duties before going to court, and unless she dots every "i" and crosses every "t," she may end up on the losing side.And Remember: if the landlord wins the eviction lawsuit, they can't just move the tenant and his things out onto the sidewalk. Typically, a landlord must give the judgment to a local law enforcement officer, along with a fee which the tenant will be ordered to pay as part of the landlord's costs to bring suit. The sheriff or marshal gives the tenant a notice telling him that he'll be back, sometimes within twenty-four hours to just a few days, to physically remove him if he isn't gone.
Serving
the summons and complaint
To
evict a tenant, you will need to serve the tenant with a summons and
complaint. If there are multiple tenants, each of them must be served. If
John Doe is the only tenant named in the lease, some states allow you to
name John Doe and all other occupants.
Actual service
Some state statutes require a sheriff or other authorized process server to physically serve the complaint and summons on the tenant. Knowing where and when the tenant works, as well as the tenant's residence, helps make a successful service likely. The officer who serves the tenant must also report the fact of service to the court. Some jurisdictions permit service by certified mailing from the court, but tenants avoiding service may decline to receive the mailing.
Constructive service
Constructive service is an attempt to serve notice of the suite for possession that the court accepts as a lawful substitute for actual service. Examples include posting the summons and complaint on the door of the premises, mailing the notice, and publishing it in a local newspaper. Jurisdictions vary on the permitted ways of making constructive service and may require attempts at actual service before allowing such alternatives. If you are going to rely on constructive notice, you must comply exactly with applicable statutes and bring proof of compliance to the eviction hearing.
Confirm service before going to court
If you show up at an eviction hearing without proof that the tenant was served the summons and complaint the required number of days in advance of the hearing, your case will be continued or dismissed. Confirm that the sheriff or other officer served the tenant. A phone call to the process server or the court usually can tell you whether and when service was made.
Make sure you have the right to evict and can prove it
The burden of proof at the unlawful detainer hearing is on the landlord so come prepared to meet it. Even if the tenant was properly served but failed to attend the hearing, the judge will want to hear your proof that eviction is warranted.
Prove the breach
A copy of the lease and any evidence you have of a breach that permits termination is essential. Pictures, writings, and records may sway a judge when a tenant disputes your word. Know exactly which provisions of the lease were violated and show them to the judge. If you anticipate resistance from the tenant, bring witnesses if you have them.
Demonstrate that you complied with procedures
You must show not only a breach that permits termination of the lease, but also that you complied with all statutory procedures such as serving a notice to quit and serving a summons and complaint.
Anticipate defenses. The tenant may claim that the breach was cured. Know any statutory periods and lease provisions that limit or define the tenant's right to cure. The tenant may claim "waiver," that is, that you agreed - either verbally or by accepting late rent payments - not to terminate the lease. Your lease provisions can help provide that such actions don't constitute waiver. Tenants often assert as defenses that the premises were uninhabitable or that the eviction is in retaliation for reporting housing code violations. A lease provision that all requests for maintenance must be in writing usually answers unwarranted tenant allegations.
Summary
If you want to be successful in tenant evictions, it's essential that you comply with your state's statutory procedures, including the notice to quit and proper service of a summons and complaint. Once you win a judgment and the judge has issued the writ of eviction, you must wait another required number of days before a sheriff can execute the writ and physically remove the tenant and the tenant's belongings from the premises. You may have to file another lawsuit for unpaid rent or damages, usually in Small Claims Court, if those issues weren't addressed in the unlawful detainer action.
We have come to the end of our eviction overview but we hope the road to understanding eviction does not end for you here. You should now have a general understand of how the eviction process works. However, mistakes can be very costly so take the necessary time and effort to complete the Eviction e-course. A screwed up eviction can be a horrible experience.
Everything we have covered here is addressed in great detail, with step-by-step instructions starting with Lesson One. Are you ready to get started? Click here.
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