Eviction Procedures
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The eviction topic is discussed in step-by-step detail in our Evictions e-Course. An overview of the eviction process, including the types of termination notices required for different situations, from lease violations to tenant's failure to pay rent. "Self Help" evictions are usually prohibited by law. The only way a landlord can regain possession of a rented residential property is with a legal process termination of the tenancy and a writ for possession signed by a judge. Physically removing a tenant and his possessions from residential property can't be done legally until the landlord has used due process by going to court and proving that the tenant has violated the lease or rental agreement in a manner that justifies ending the tenancy. This usually means giving a tenant adequate written notice, in a specified way, on an approved form, followed by a lawsuit to evict the tenant.
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 Summery 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. 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 filed out, filed with the court at the correct 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.
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Avoid self-help
Very 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.
State law usually sets out 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, usually 3 to 10, 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. They give the tenant a few days (three to ten in most states) to pay or move out ("quit"). Some state statutes now require that the notice be in both English and Spanish.
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 normally allowed only when the tenant has been late with the rent on more than one occasion; committed a repeated and significant lease or rental agreement violation; committed serious waste or damage to the premises, or: engaged in illegal activity, such as prostitution or drug dealing on the premises.
Follow the law exactly
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.
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 suit 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. If you aren't sure, phone the process server or the court and verify that service was made.
Make sure you have the right to evict and can prove it
The burden of proof at the eviction 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.
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.
The eviction topic is discussed in step-by-step detail in our Evictions e-Course.
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