Going to court for an eviction can be a quick and painless process if everything has been done correctly. An eviction hearing is like any other court procedure. The judge will ask questions of both sides and review the evidence. If you have all your documents in order and know the answers to any questions, you should prevail.
The tenant has the right to make a defense, so you should be ready to address any complaints or arguments that may be raised against the eviction. Preparation is key to winning an eviction hearing.
The Legal Process of Eviction
Whether you handle your evictions yourself or hire an attorney, evictions are all done the same way. Each state has its own procedure for evicting tenants. Most states require at least three days’ notice following failure to pay rent or other lease violations before you can begin the eviction process.
Notifying Tenant to Vacate the Premises
In most states, this is called a “cure or quit” notice. If the tenant is past due on their rent, you must give them three (or in some states, as many as 30) days to pay the rent or leave the property. If the tenant pays during that time, you cannot continue the eviction process.
Filing the Eviction Lawsuit
While you wait, you should fill out the paperwork. Some states require a complete Summons and Complaint to evict a tenant, while others have a more streamlined “summary eviction.” In either case, the forms must be complete and ready for filing if the tenant does not pay the rent or fix the problem stated in the notice.
If they do not correct the problem or move out, then you can take the eviction paperwork to court and file it. You will receive a court date with the stamped documentation.
Serving the Tenant
The tenant must receive the eviction summons and complaint a minimum number of days before the hearing. In some states, it can be as many as 30 days before the hearing. Delivery of the summons and other documents is called service of process. The tenant must receive the summons, complaint, and in some states an answer form and copies of the state laws relevant to evictions.
You cannot serve the summons yourself. Otherwise, anyone may deliver the summons to the tenant. The summons may be delivered by:
- Anyone over 18 who is not a party to the case.
- A professional process server.
- The sheriff or county marshal’s office.
After the summons has been served, the server must complete and file a Proof of Service with the court. Until this has been filed, there is no proof the notice has been given to the tenant.
Pre-Eviction Hearing
Before the hearing, you should get ready to go to court. Have everything gathered in one place so if anything goes wrong you won’t have to explain to someone else what they need to find.
Understanding Legal Grounds for Eviction
If you have a valid lease agreement with your tenants, you cannot evict them without cause. Your lease should state reasons for lease termination, such as nonpayment of rent, illegal activity, nuisance or damage, or subletting the property without permission.
Most states require notice to tenants if you will be selling the property, or if the property is in foreclosure. States differ as to the amount of time you must give tenants for each type of termination.
For instance, some states allow landlords to begin the eviction process immediately if a tenant is selling drugs on the property. Some states require a three-day notice and then a five-day notice that the eviction process has started.
Preparing for the Hearing
Take time to prepare everything. Don’t think that you can assemble your case the night before court.
- Documentation. Get all documents you’ll need to make your case, including the lease agreement, invoices, payment receipts showing evidence of missed payments, copies of the eviction notice, correspondence such as texts and emails with the tenant, and other relevant evidence.
- Witnesses. If there is anyone who may be helpful, let them know well in advance of the hearing date. Don’t call someone the day before and expect them to be there.
- Attorney. If you want to retain an attorney, you’ll need to hire one long before the hearing.
Day of the Court Eviction Hearing
Arrive at least one hour early on the hearing date. Remember that courts have security checkpoints, and many other people will be there. Locate your courtroom on the docket. It may have changed since your case was assigned.
Cases are generally called in reverse order:
- Cases where neither party showed up.
- Cases where only the plaintiff showed up.
- Cases where only the defendant showed up.
- Cases where both sides showed up.
Your name might be first on the docket, but if your tenants are present, you might be called last. Prepare to wait.
Behave Appropriately
Act professionally. Do not enter the courtroom until the bailiff opens the doors. Inside, do not go up to the tables until the bailiff calls your name. Never approach the judge or the clerk unless told to do so.
Dress appropriately. If you do not have a suit and tie, at least wear a button-up shirt and slacks. No hoodies, flip-flops, or torn jeans. Turn off your cell phone. Bailiffs have been known to confiscate phones and not give them back.
Speak only to the judge. Do not argue with the tenant or their attorney. If you disagree with something, wait until they finish speaking, then ask the judge if you can address that point. Never yell or swear at anyone.
Presenting Your Case
You should bring three copies of all your evidence, one for yourself, one for the defense, and one for the judge. The judge will let you know if they don’t need a copy, but you should have it anyway.
“Your Honor, the rental agreement between the tenant and I states the rent is due on June 1. On June 3, I still had not received the rent. I delivered a late rent notice, marked Exhibit A, to the tenant that same day. It contains all the required information. On June 6, I still had not received the rent. On June 9, which was the next business day, I filed an eviction notice with the court.”Example of Testimony
The judge may ask you questions about your testimony, may ask the tenant to respond, or may review your evidence. While the judge is considering, you should say nothing. Once you have finished presenting all your evidence, you may say you are done presenting your side.
Your tenant has the right to present a defense, and you should be prepared to respond.
Tenant’s Defense
Tenants may have legal reasons for nonpayment of rent, but they must be carried out in the proper manner. The most common defenses for nonpayment are:
- Landlord previously accepted late rent. If you accepted late payments in the past, your defense may be that this rent was unusually late, several weeks instead of several days, or that previously the tenant contacted you about the delay in payment and you agreed to accept the late payment.
- Repair and deduct. Some states allow tenants to perform repairs on their apartments and withhold that cost from the rent. However, they can usually only do so if they have informed the landlord in writing of the need for repairs and the landlord has failed to make repairs within 30 days of the written notice. See Cal. Civ. Code § 1942 for California and Colo. Rev. Stat. § 38-12-507 for Colorado.
- Defective notice. In many states, such as California, a 3-day notice that does not comply with the state statutes is grounds for dismissing the entire case. If the amount of rent due is off by even one cent or the date on the notice is wrong, the notice is defective, and you must rescind the notice. There is no defense for a defective notice in California (see Cal. Civ. Proc. Code § 1161). See more tenant defenses in California.
If your Tenant Doesn’t Show Up to the Hearing
Sometimes, tenants believe that if they don’t respond or go to the hearing, nothing will happen. This is a misconception. The judge will likely grant you a default judgment and issue a Judgment of Possession.
Possible Outcomes of the Hearing
Judgment for the Landlord
If you prevail, the tenant must vacate the premises. You will receive a Writ or Judgment of Possession, and the tenant will be ordered to vacate within a certain number of days. The judge may take their circumstances into consideration when ordering them to vacate.
Judgment for the Tenant
If the tenant wins, they return to their residence. The judge may have found your action was retaliatory (you were evicting them for reasons unrelated to what you stated in your complaint), or that you did not give them sufficient time to correct the problem. In some states, you cannot attempt to evict the tenants again for a statutory period of up to 180 days.
Settlement or Mediation
Some courts and legal professionals recommend mediation before or during the eviction process. Mediation involves the parties meeting with a neutral third party and attempting to come to a resolution that meets the needs of both.
For instance, if the tenants are creating a nuisance because their children are bothering the downstairs neighbors, perhaps eviction isn’t the solution.
Maybe moving them to a different unit would work instead. Perhaps chronic late payment is an issue because the tenant gets paid on the 15th instead of the 1st. Mediation can resolve many issues that litigation cannot.
Post Eviction Hearing
Enforcing the Eviction
Once you receive the judgment, you must contact law enforcement. States and even counties differ greatly over how the actual removal process goes. All agree that landlords should not do this themselves.
Once you contact law enforcement, they will place a Notice to Vacate or Writ of Execution on the tenant’s door. This can take anywhere from 48 hours to five days, depending on the jurisdiction. Do not attempt to rush the process by changing the locks, cutting the power, or any other self-help procedures. Law enforcement will contact you when they arrive to remove the tenant.
Appeals Process
If you disagree with the judge’s decision, you (or the tenant) have the right to appeal. You have a very limited window to file your notice of appeal, seldom more than 30 days in most states. If you want to appeal the decision, you should get an attorney. Filing an appeal is not for the layperson.
Collecting Unpaid Rent
If the court did not order the tenant to pay the unpaid rent as part of the judgment, you may file a civil lawsuit to collect from your tenant. You can also retain any security deposit if the tenant paid a deposit.
If you do consider filing a civil suit, think about whether you can realistically collect the rent from your former tenant. If the tenant is not able to pay rent, the likelihood that you are able to collect anything is slim. But you have that option.
Tips for Success
- Legal Compliance. Maximize your chances of success by following state and local laws to the letter. Keep your property in good shape, take rent payments promptly on time, and treat all tenants fairly. If you do have to post an eviction notice, make sure it is 100% compliant with state requirements.
- Professionalism. Being a landlord is a business. Treat it as one. Invoice all your payments. Get receipts for every transaction. Keep documents for every contact you have with tenants, vendors, and visitors. When you go to court, behave like a professional doing business with other professionals.
- Seeking Legal Advice. If you’re not sure what you should do next, contact an attorney. If you have a crafty tenant, or if you know you did something wrong, get legal assistance. When you know you’re in over your head, get help from the pros.
Conclusion
An eviction hearing can be smooth sailing as long as you keep your wits about you and your paperwork in order. Whether you handle it yourself or hire an attorney, it all comes down to keeping things legal, keeping yourself calm, and following the rules.
