Lesson 1
Understanding Evictions
A LAWSUIT occurs when two or more persons take a dispute to court seeking a legally binding decision by a judge or a jury. The PLAINTIFF is the person who starts the lawsuit and is usually the person who claims to have been damaged by someone. The DEFENDANT is the person about whom the plaintiff is complaining.
The eviction action may be known in your state as: summary proceeding, ejectment or process, forceable entry and detention, or unlawful detainer lawsuits. Although state laws may differ in name and on particulars, most evictions follow a common pattern.
The linchpin of an eviction lawsuit is properly terminating the tenancy before you go to court. You can't proceed with your lawsuit, let alone get a judgment for possession of your property, or for unpaid rent, without terminating the tenancy first. This usually means giving your tenant adequate written notice, in a specified way and form. If the tenant doesn't move (or reform) you can file a lawsuit to evict.
State laws set out very detailed requirements for landlords who want to end a tenancy. Each state 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. You must follow state rules and procedures exactly. Otherwise, you will experience delays in evicting a tenant (and maybe even lose your lawsuit) even if your tenant has bounced rent checks and been chronically late.
Because an eviction judgment means the tenant won't have a home, the more liberal northern and costal state's laws are usually very demanding of landlords. In addition, many rent control cities or rules for rent subsidized tenants go beyond state laws (which typically allow the termination of a month-to-month tenant at the will of the landlord) and require the landlord to prove a legally recognized reason, or just cause, for eviction. State laws in the old south and west are usually more friendly to landlords.
Even if you properly bring and conduct an eviction lawsuit for a valid reason you always run the risk of encountering a judge who, despite the merits of your position, will hold you to every technicality and bend over backwards to sustain the tenant's position. Conversely, there are "landlord judges" who have become skeptical of the "same old" tenant defenses and have a mind set of "pay the rent or get out". But don't gamble on the judge, if you can help it. Learn the rules and follow them as exactly as you can.
How Eviction Lawsuits Work
An eviction starts with a Notice to Quit the premises within a statutory number of days. However, when the deadline in the termination notice passes, a tenant will not be automatically evicted. In almost every state, you must file and win an eviction lawsuit before the sheriff or marshal can physically evict a tenant who refuses to leave after receiving the termination notice.
THE ROLE OF YOUR ATTORNEY
Nothing in our Rental Housing On Line webs should ever be considered to be or construed as attempting to dissuade you from using the services of a competent lawyer. The purpose of the information and e-training we provide is to increase your knowledge of the eviction process and increase the profitability of your investments.
While many experienced landlords routinely conduct their own evictions in the courts, many others, particularly those who seldom use the legal system, prefer to have an attorney by their side. First timers should always weigh the cost of an attorney (a few hundred dollars) with the cost of having a nonpaying "bad" tenant in their property for an extra month or more because some detail was missed in the eviction process.
Depending on your location and the particular situation, you may be able to handle all, or most of an eviction lawsuit yourself. Some landlords in some locations are able to employ legal secretaries or typing services, sometimes even independent paralegals to help with evictions. But there are some circumstances when you should definitely consult an attorney who specializes in landlord-tenant law. These circumstances include::
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Your tenant is already represented by a lawyer, even before you proceed with an eviction.
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Your property is subject to rent control rules governing eviction.
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The tenant you are evicting is an ex-employee whom you have fired.
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Your tenant contests the eviction in court.
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Your tenant files for bankruptcy.
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The property you own is too far from where you live. Since you must file an eviction lawsuit where the property is located, the time and travel involved in representing yourself may be too great.
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Your property is titled to a corporation.
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This Eviction e-course should increase your understanding of what will happen during the eviction process and what is required of you. However, if you are taking this course because you are facing your first eviction, we suggest that you consider the following options:
(1) Study the material carefully, then let your attorney conduct the case while you observe and remember his procedure. Claim your complete file from him and use it along with this resource in doing an eviction yourself in the future.
(2) Consult with your attorney, allow yourself to be coached, perhaps allow him to help you with the paperwork or check what you have done, and then do the court appearance yourself.
(3) Study this material carefully, fill out the sample forms and take the quizzes, then conduct your own eviction. If your evictions are, or might become frequent, it may be impractical and too costly to have them all handled professionally.
A tenant eviction is a basic tool of your trade and hopefully you will become comfortable with the process. However, it is always important to maintain a good relationship with several attorneys. When you meet a lawyer at the health club, church, or anywhere else, make friends and ask for a card. You may think you are the smartest kid on the block and know all you need to know about your business, but our judicial system is imperfect and your day will come when right and wrong are irrelevant.
Every longtime landlord is likely to have to deal with a judge who doesn't care about either you, the facts, or the letter of the law. Many of the judges you come before are political appointees who got the job based on their fundraising for the governor, rather than merit or competency. Others were elected simply because they have a good ethnic name in their kind of community and may come to the bench with more than the usual amount of prejudice and bias. Others sit there, politically unbeatable, on and on and on, into senility.
When your day comes to face judicial social activism, or some old fool in black robes, that will be the day you are glad you have a well-connected lawyer that you can call to work some magic through the system.
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