Although the laws that govern the eviction process differ from location to location, they generally require the same basic steps in property management. Once you are familiar with these steps, you will find it much easier to understand the fine points of the particular laws in your area.
It is extremely important to understand these laws in property management. Eviction cases often can be delayed, or even dismissed, because of technical errors on a landlord’s part. A simple mistake like using the wrong form, providing a name different from the tenant’s, serving notice improperly, or submitting a form late, could hold up your case.
An attorney specializing in evictions can help you avoid mistakes like these. He or she also can guide you through the technical requirements involved in each step of the eviction process in property management.
Step 1: Serve notice
Once you are familiar with local procedures, you are ready to serve your tenant with a document called a “notice.” A notice to quit or a notice to vacate is a letter to the tenant identifying the premises, alleging a valid reason that the landlord can regain posses- sion (if required), and giving the tenant the proper amount of time required by the lease and/or the law to either remedy the lease violation or vacate. The form of notice is specified by the laws of your area covering the type of tenancy (month-to-month tenancy, or tenancy at will, for example) and the reason for eviction. Proper service of this document on the tenant is the first step in the eviction process. In some areas, you do not need to serve notice in cases where the tenant is using your property to conduct illegal activities or, in certain circumstances, if the tenant has waived the right to receive notice.
You may be called on to prove both that you served the notice according to the letter of the law and that the tenant presumably received it by the date required. You may be able to have the sheriff deliver the notice. In some areas, you may need or wish to use a company that specializes in legal service of papers. It can be helpful to keep detailed notes about how the notice was served.
In many locations, you also may have to prove that a copy of the notice was delivered to the court or a government agency. If this is the case in your area, be sure you obtain written documentation that the court or agency received the copy.
Once the tenant receives proper notice and the time period set forth in the notice expires, you have the legal right to begin eviction proceedings. This does not mean, however, that you can lock the tenant out or forcibly remove him or her. He or she will have the right to remain in the unit until you actually obtain a court order authorizing the eviction and the proper procedures have been carried out to execute the actual eviction.
Step 2: Initiate the eviction proceeding
After serving the notice, and upon the expiration of the applicable number of days set forth in the notice, you may commence an eviction proceeding in court if the tenant has not vacated the unit. Consult your local rules to learn the specific requirements in your area. Generally, you will be required to submit a petition or complaint to the court and pay a filing fee. The court will issue a notice or summons demanding that both you and your tenant show up in court at a specified date and time. The court notice or summons will be accompanied by the petition or complaint. The petition or complaint should state your reasons for initiating the eviction and any amount of money you believe the tenant owes you if the action is based on non-payment of rent. Be sure the notice and petition or summons and complaint are served upon the ten- ant in accordance with local law. If they are not, your case could be delayed or dismissed.
Step 3: Wait for the answer day and filing date
Once the tenant receives the summons and com- plaint, he or she may be required to respond to the complaint by a date certain. The tenant may either concede that your complaint is valid or offer a defense.
When a tenant offers a defense, he or she has the right to a fair hearing, and the court will set a hearing date. Here are some examples of defenses the tenant might offer:
• court papers either were served improperly or listed the tenant by the wrong name;
• you are retaliating against the tenant because of an action taken by the tenant that is protected by law, like making a complaint to a government agency or tenant organization; or
• your complaint is not valid.
If your complaint relates to the tenant’s failure to pay rent, the tenant’s defenses may include the following:
• he or she has already paid all or part of any rent you are demanding;
• he or she withheld the rent because you have not made repairs you are legally required to make;
• you stated an incorrect amount of overdue rent in your complaint; or
• because of a previous overcharge, you are demanding more rent than is actually due.
Step 4: Attend the hearing
Once the court has received the tenant’s answer (if required) and has set a hearing date, it is essential that you show up on time and present your case in a professional, objective manner. If you do not appear in court, the case may be dismissed.
In most places, if your tenant does not appear in court at the appointed time, you are likely to win your case by default. This may not happen if the tenant takes the initiative to show good cause for being absent (by documenting that he or she was hospitalized, for example). If there is a default, you will be required to file with the court an affidavit affirming that the tenant is not a military service member or other protected federal service member. If the tenant is a service member covered by the Service Members Civil Relief Act and the tenant did not appear in court, there may be additional procedures you will need to follow before you may have a judgment entered and proceed with eviction.
When you appear before the court, it is important to present your facts as objectively as you can. It is usually appropriate to state them in chronological order.
When the tenant speaks, do not interrupt. Make notes if necessary during the tenant’s presentation. Then, after he or she has finished, ask the judge if you may respond. When making your comments, be as objective as you can.
Step 5: Get an eviction order
Once a judge rules in your favor, you will receive an order giving you the right to evict your tenant. You may have to wait for this document until your ten- ant’s appeal period has expired.
Step 6: Enforce the eviction
To enforce the eviction, you may need, or be required, to hire the sheriff to remove the tenant forcibly from the premises. The sheriff must give the tenant at least the minimum amount of notice local law requires. And when giving notice, the sheriff usually must name a specific time by which the tenant has to leave.
In some locations, landlords are required to hire eviction crews to carry out the eviction and/or try to store any evicted tenant’s belongings that are left outside the house. Laws regarding how, where, or for what duration the items should be stored — and for how the storage should be paid — differ from area to area.
In some places, the tenant has the right to ask the court for a Stay of Execution. Such a ruling temporarily blocks your right to evict and gives the tenant more time to contest your complaint. However, while the Stay of Execution is in force, the tenant may still be legally responsible for paying rent to you, depend- ing on local laws.
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