How Does the Eviction Process Work?
An eviction is a formal legal procedure aimed at removing a tenant from a rented property.
This process is common nationwide, but the eviction steps differ from state to state. It’s crucial to adhere closely to your local laws and consider consulting with a local attorney to avoid legal complications and financial burdens. Below are some general eviction guidelines to get you started.
Legal Grounds for Eviction
Before proceeding with an eviction process, it’s essential to ensure you have a valid legal reason to do so. Here are some common scenarios where you may consider initiating eviction proceedings:
- Non-Payment of Rent: If your tenant consistently fails to pay rent on time or stops paying altogether (exceptions may apply for COVID-19-related rental debt).
- Lease Violations: Where the tenant breaches the lease agreement, such as having unauthorized pets or having guests that stay too long.
- Property Damage: When the tenant’s actions result in significant damage to the property, lowering its value.
- Nuisance Behavior: If the tenant engages in disruptive behavior that affects other tenants or neighbors, even after being warned.
- Illegal Activities: If the tenant uses the property for unlawful purposes.
In certain situations, you can consider eviction if the tenant stays beyond the lease term or if you give proper notice to terminate the rental agreement. However, these reasons may not suffice, particularly in eviction-controlled areas. If uncertain about your legal position, seek advice from your local court or a lawyer.
Once you’ve confirmed that you have legal grounds to evict someone, make sure to gather any evidence that can be used to substantiate your claim, such as documents, photos, written communications, or videos.
Legal Protections
While landlords can evict tenants for various reasons allowed by law, there are a couple of legal protections in place that prevent unfair evictions:
- Federal Fair Housing Act: It’s illegal to evict tenants based on factors such as race, sex, religion, national origin, marital status, sexual orientation, number of children, job, or disability status. Eviction or lease non-renewal cannot be used as retaliation against tenants for complaints, calling emergency services, or other lawful actions, as established in the case of Edwards v. Habib.
- Illegal Eviction Practices or Constructive Eviction: You cannot lock the tenants out or cut off essential utilities like gas, water, electricity, or heat to coerce them into vacating the premises.
Understanding your rights and responsibilities is crucial to navigating the eviction process fairly and legally.
Formal Eviction Notice
In most states, you’re required by law to start the eviction process by serving the tenant with a written notice. This gives them the opportunity to resolve the issue before further legal action is taken.
Once the notice has been served, the timeframe for resolving the issue or vacating the property depends on your state’s specific laws.
It’s important to note that even though a lease agreement isn’t present, landlords and tenants still have legal rights and responsibilities. Consulting with a lawyer familiar with landlord-tenant laws in your area is highly recommended to ensure you follow the proper procedures for eviction.
Eviction Timelines
Knowing your lease type and understanding eviction timelines in your state’s laws is essential. There are typically two periods to consider:
- Waiting Period Before Issuing Notice: While some states allow for immediate notices, many require a waiting period, typically ranging from 3 to 7 days.
- Eviction Notice Period: After serving the notice, the tenant is given a specific number of days (usually ranging from 3 to 7) to either pay their rent or vacate the premises, as determined by state regulations.
If the tenant fails to pay or address the violation, they must vacate the premises or risk facing legal action.
Notice Types
Here are the most common eviction notice types:
If the tenant is behind on rent.
The tenant has a set period to pay rent or vacate the property, as per state laws. The notice must contain the tenant’s name, address, the amount owed, and where to pay details. Other details to consider:
- Availability: mention the best times and days for in-person payments.
- Address: include your full address if the tenant chooses to pay by mail.
- Dates for overdue rent: particularly important if taken to court.
This notice cannot be used for other owed money like late fees or utilities.
If the violated the terms of the lease agreement.
Use this notice if your tenant breaks the lease, like having a pet when it’s not allowed, causing disturbances, property damage, or affecting other people’s health and safety. They typically have a number of days to fix the problem or leave, excluding weekends and holidays.
The notice should typically include the tenant’s full name, rental, address, the lease violation, and the deadline for fixing or leaving.
Some states or jurisdictions may require sending a “cease and desist letter” before sending this notice.
If the tenant did something illegal on the property.
This notice typically mandates the tenant to vacate the premises immediately, depending on state law. Common illegal acts that may prompt this notice include drug use, harassment, prostitution, or causing major damage to the property.
The notice should be in writing and contain the tenant(s) full name(s), the rental home address, details about the lease violation, and the number of days when the property should be vacated.
If you want your month-to-month tenant to move out.
To end a month-to-month lease, send a termination letter to notify the intent to vacate. The letter should give at least 30 days’ notice, but this might vary by state or lease terms.
The notice should typically include the tenant(s) full name(s), rental home address, end date of the tenancy (usually 30 or 60 days), and information on reclaiming abandoned property.
In some states, you need a just cause to end the lease, like if you need to do major repairs or are selling the property to someone who will move in. If this applies, your notice must state the reason and may require offering relocation assistance or a rent waiver. If opting for the rent waiver, specify the amount and clarify that the tenant is not obligated to pay rent for the final month.
Exceptions to Notice Requirement
In most cases, providing notice is a prerequisite before initiating an unlawful detainer court case. However, there are several exceptions to this rule, which may vary depending on state laws:
- Fixed-Term Leases: If your tenant holds a lease for a fixed duration, and the lease term expires without renewal, you may commence a court case without prior notice. Yet, it’s crucial to refrain from accepting rent beyond the lease term to avoid unintentionally transitioning into a month-to-month tenancy, which necessitates notice for termination.
- Tenant’s Notice to Vacate: Should your tenant issue notice of their intent to vacate the premises but fail to do so, you are entitled to initiate legal proceedings immediately.
- Tenant Employment Arrangement: If your tenant resides on the property as part of their employment and ceases to work for you, you can initiate a court case without providing prior notice.
These exceptions may not be valid in all states, so it’s best to consult local laws before taking the necessary steps.
How to Evict (In 8 Steps)
Step 1 – Prepare and Deliver the Eviction Notice
In almost all states, the landlord must serve the tenant with an eviction notice before initiating eviction proceedings. Depending on state laws, this notice can be delivered personally, posted on the property, or sent via mail.
Find out which notice type you need, depending on the eviction reason, and make sure the form adheres to all requirements mandated by your state law. Failure to include essential information or errors in the notice could jeopardize your case, potentially resulting in an unfavorable outcome.
Here are some general guidelines for the notice delivery:
- Decide if you’ll deliver the Notice yourself or ask someone else.
- The person delivering must be 18 or older. It can be someone you know, a family member, or a professional.
- Hand the Notice directly to your tenant.
- If your tenant isn’t home:
- You can leave the Notice with someone 18 or older at their home or workplace or tape it to their rental home.
- Then, mail a copy to them.
- Write down delivery details:
- Note the Notice’s name and delivery date.
- Sign a statement declaring the details are true.
- Keep this record in case you need it for court.
Step 2 – Wait for Your Tenant’s Response
Following the issuance of the notice, open lines of communication with the tenant to facilitate negotiation. Here are some potential responses:
- Compliance with Notice: If your tenant fulfills the requirements outlined in the Notice by the deadline, you don’t need to initiate an eviction court case.
- Negotiation: If your tenant expresses a willingness to negotiate, you can engage in discussions to find a mutually agreeable solution. Alternatively, you may opt for mediation, facilitated by a trained mediator, to resolve disputes. In most cases, failing to reach an agreement by the deadline allows you to pursue eviction through court proceedings.
- Non-action: If the deadline passes without any action from the tenant, you have the right to start eviction proceedings in court.
Wait until your tenant’s deadline has passed before taking further action. Eviction proceedings can only begin once the deadline specified in the Notice has expired, which varies for each Notice and each state.
How to Calculate the Deadline
When calculating the deadline, it’s important to consider state laws and the specific notice type being sent. Typically, you should start with the number of days specified in the Notice. Day 1 starts the day after the Notice is delivered or mailed to the tenant.
For good measure, exclude Saturdays, Sundays, and holidays when calculating deadlines for notices, especially those with 10 or fewer days. Also, ensure that the notice doesn’t end on a Sunday or holiday. This approach ensures compliance and minimizes the risk of challenges based on timing.
Example 1: 3-Day Notice to Pay Rent or Quit
When calculating the deadline for this notice, it’s important to consider state laws and the specific notice type being sent. If the notice is delivered on Monday, Day 1 is Tuesday, Day 2 is Wednesday (excluding court holidays), and Day 3 is Thursday (excluding court holidays). A court case can be initiated on Day 4 if necessary.
Step 3 – Complete Court Forms
The landlord typically needs to fill out several court forms, including the Complaint, Summons, Civil Cover Sheet, and a copy of the eviction notice served to the tenant.
Additional documents you might require:
- Lease or rental agreement (if applicable), including any agreed-upon written amendments.
- Any other relevant evidence supporting your case for the tenant’s eviction.
Step 4 – File with the Court
To start the eviction process, find the superior court in the county where your tenant lives and locate the courthouse handling eviction cases. Use this address on your forms and Summons and submit the completed eviction forms.
As the plaintiff, you’re taking legal action against your tenant, the defendant. Include all occupants of the home, even if they’re not on the lease. Evicting all occupants at once simplifies the process.
Contact the court clerk to ascertain the filing fee, which can usually be paid by check. The clerk will review the forms and provide the landlord with a filed copy of the summons.
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Check for local forms you may need to fill out. Some courts have specific forms you must use.
Step 5 – Serve the Tenant
The tenant must be served with the summons and any other necessary documents issued by the court. This can be done either by a process server to ensure proper delivery or via USPS-certified mail.
Tips to Choose a Server
In most cases, you can’t personally serve the tenant yourself. Your server must be 18 years or older and not involved in the case.
You can opt for:
- Someone you trust.
- The county sheriff (in most, but not all, states or jurisdictions).
- A professional process server you hire.
If you decide on a process server, choose one near where your tenant lives or works to potentially save on costs, as they usually charge based on time spent. The sheriff also charges for this service unless you have a fee waiver.
In most states, your server must complete a Proof of Service outlining how, when, and where they served the Summons and related documents, and sign and date at the bottom. You will usually be required to file the original Proof of Service form and one copy at the court clerk’s office.
Step 6 – Wait for the Tenant to Respond
After being served, the tenant typically has a specified period, usually around 20 days, to respond to the court by submitting an Answer form. The court will then schedule a trial date.
If your tenant doesn’t respond within the specified period, you may be able to request a default judgment from the judge, asking the tenant to move out. It’s wise to do this early, keeping in mind that the tenant can still respond before you request the default judgment.
Step 7 – Attend the Trial Hearing
Both parties, the landlord, and the tenant, will have the opportunity to present their cases before the judge. After hearing each party’s arguments and addressing any questions, the judge will render a decision in favor of one party.
How to Get Ready for Your Trial
When your case is called, you’ll likely speak first, explaining to the judge why your tenant should be evicted. Prepare your testimony beforehand, outlining key facts and details for easy reference.
Tips for addressing the judge:
- Before you begin your testimony, ask the Judge: “Your Honor, may I begin?“
- Start by stating, “Your Honor, I believe my tenant should be evicted because…” and provide supporting facts and laws.
You should bring any evidence, such as photos or emails, to support your case, making sure to provide copies to both the judge and the other party.
Examples of evidence you can present:
- USE WITNESS TESTIMONY AS EVIDENCE
“Your Honor, I have a witness who can testify to the noise disturbances caused by the tenant.”
Call the witness to the stand and have them recount their experiences with specific instances of noise disruptions caused by the tenant, including dates, times, and the impact on their quality of life.
- PRESENT UTILITY BILLS AS EVIDENCE
“Your Honor, I have utility bills that demonstrate excessive usage during the tenant’s occupancy, indicating potential property misuse.”
Display the utility bills one by one, highlighting the periods of high consumption and explaining how they correlate with the tenant’s tenancy. If available, provide analysis or expert testimony to support the argument.
- SUBMIT MAINTENANCE REQUEST LOGS AS EVIDENCE
“Your Honor, I have a log of maintenance requests made by the tenant, showcasing their negligence in property upkeep.”
Present the maintenance request log detailing each request made by the tenant, the nature of the issue, and any corresponding actions taken. Highlight instances where the tenant’s actions or inactions contributed to property damage or deterioration.
- PRODUCE POLICE REPORTS AS EVIDENCE
“Your Honor, I have police reports documenting disturbances and violations of the lease agreement by the tenant.”
Submit the police reports one by one detailing the incidents involving the tenant, such as noise complaints, disputes with neighbors, or criminal activities. Explain how these reports demonstrate the tenant’s failure to comply with the terms of the lease agreement and maintain peaceful occupancy.
Step 8 – If You Win, Remove the Tenant from the Property
A Writ of Possession may be issued, which you must file with the local county sheriff. This authorizes the physical removal of the tenant from the premises.
The sheriff will then execute the Writ of Possession, either by physically removing the tenant from the property or waiting for them to vacate before securing the premises. If the tenant is locked out, you must arrange for the retrieval of their belongings.
If you lose, the court will deny the eviction request, the tenant stays, and you may incur financial penalties, face difficulties with future evictions, and risk fines or prosecution for illegal actions.
It’s crucial to note that some tenants may be eligible to file a hardship defense, potentially delaying eviction due to unforeseen circumstances. Be aware of your local laws regarding eviction hardships, such as job loss, medical emergencies, or inability to secure alternative housing.
By following the outlined steps, landlords can efficiently and effectively navigate the eviction process while maintaining clear communication with tenants and adhering to legal requirements.
Rights and Responsibilities
Your Responsibilities as a Landlord
Eviction laws vary by state, so it’s crucial to know your state’s specific regulations before proceeding. Failure to do so could result in legal repercussions, as your tenant may take legal action against you for violating landlord-tenant laws.
Here are the most important aspects you should keep in mind:
- Waiting period before giving notice.
- Required notice period before filing for eviction.
Tenant Rights During Eviction
In some states, tenants have the right to sue landlords who attempt illegal evictions using self-help methods, like changing the locks, taking the tenant’s belongings, removing the front door, or turning off the heat or electricity
Depending on the state, tenants may be entitled to financial compensation, including court fees and lawyer expenses if they win the case. Additionally, some states allow tenants to remain in their rental units.