by Brian Davis
The eviction process can be time-consuming and expensive, and a source of confusion for many landlords. Being (and staying) informed about the eviction procedure for your individual state is not only proactive but crucial to successful property management.
Each state has its own set of eviction laws and regulations, and in many cases, eviction procedures may also be set by each jurisdiction as well. To make matters worse, the eviction terminology varies by location as well, known by phrases such as: unlawful detainer, forcible entry and detainer, summary possession, summary dispossess, forcible detainer, ejectment, and repossession.
What Landlords and Property Managers Cannot Do
WARNING: Before understanding the legal process for evicting a tenant, it’s important that landlords understand that there is no other legal way to remove a tenant. A self-help or illegal eviction is when a landlord decides to take matters in his/her own hands without following the procedures prescribed by state and local law. To reiterate, it is ILLEGAL for a landlord to try and remove a tenant without use of the court system, and it should never be attempted, no matter how dire a situation may be. Landlords should never do anything like:
Changing a lock
Shutting off utilities or permitting a utility to be shut off
Removing any of the tenant’s personal property from the premises
Threatening or using force to make a tenant leave
Harassing a tenant
The Legal Process For Evicting
While the details of the process vary as mentioned above, generally speaking there are five steps to take in order to evict or have your tenant physically removed from the premises. There may be more or less dependent upon your state and local laws.
Step 1: Proper Notice
Once you become aware that your tenant is violating the rental- or lease agreement, you must then serve that tenant with, in most cases, written notification. Although the most common tenant violation is non-payment of rent, the lease violation could be anything, such as keeping an unauthorized pet, permitting an extra person to move in without permission, noise problems and many, many more. The type of notice largely depends on the violation that has occurred and the specific state landlord tenant law.
Notices are labeled differently depending on the state, such as “Notice To Quit” or “Demand for Possession”, and each state has specific criteria and timeframes for eviction notices. In most cases, the notice gives the tenant the right to cure or fix the violation (i.e. pay the amount due when non-payment is the cited issue) before an eviction filing will occur while others just ask the tenant to vacate without the opportunity to fix or cure the problem. The most common periods of time for notices are five, seven and ten days for non-payment of rent; ten, fourteen and thirty for other violations. Every state is different!
Providing and serving your tenant proper notice is required before filing for eviction in court. If you are not comfortable or experienced in eviction then using a qualified attorney or eviction specialist can save time, money and aggravation.
Step 2: Filing in Court
If the tenant cures the lease violation or vacates the leased premises within the prescribed period, then the process ends there. If the tenant fails to do either, the landlord must then file an official “Complaint” or “Summons” with their local rent court. The appropriate court depends on the location of the leased premises. Landlords are advised to inquire with their local court to confirm the filing form required. With technology booming, more courts have online filing available, but a visit to the courthouse is often necessary to file for your eviction. It is wise to bring along copies of any leases, addendums, disclosures, notices, rent ledger or any other information you may have.
Once the landlord has submitted the required paperwork to their local court, the court will process it and schedule a hearing date. The time between filing in court to getting a court date varies greatly between different court jurisdictions. In a small rural town, it may be only a week or so whereas in larger cities or counties, it could be months. It is critical that you file your complaint as soon as the notice period expires and to make sure all procedures are followed to avoid unnecessary delays.
Step 3: Court Hearing
On the date of the eviction hearing, the landlord and/or their attorney or agent (such as a property manager or eviction specialist) must appear in court to explain the reason(s) for the eviction. The court has sent the tenant a notice to appear for the eviction hearing, so the tenant will often appear in court to contest the eviction and share their side of the story, or they may simply decide not to appear. At the hearing, it’s important that the landlord provide as much supporting documentation as possible, to show that they have just cause to evict. For example, if the landlord has photos or other evidence that the tenant is keeping a dog in a leased property that forbids pets, they should bring that evidence to court.
It’s also worth noting that the outcome of the eviction hearing is determined solely by the judge’s personal discretion. Even if the landlord is technically within their legal rights to evict, the judge may decide that the landlord must undergo additional steps, and file a second time for another eviction hearing. It’s critical that the landlord be courteous, professional, and well-organized for the eviction hearing, and that they persuade the judge to rule in their favor. The optimal outcome of the eviction hearing is that the judge rules in favor of the eviction to proceed.
Step 4: Writ of Possession
A “Writ of Possession” is a document distributed by the court when a judge rules to return possession of the rental property back to the landlord. The landlord should make sure there are no specific requirements to obtain or serve a Writ of Possession. Most often, a sheriff or constable will serve the tenant with the Writ of Possession, informing them that they are to leave the premises by a certain date and time or they will be forcibly removed. Writs of Possession are governed by state and local laws, which differ from
jurisdiction to jurisdiction.
Step 5: Eviction Day
Once an actual eviction date (also known as a put-out or lock-out date) is scheduled, the tenant ideally vacates the leased premises before the scheduled date, but doesn’t always happen. On the date of the eviction, the sheriff (or another authorized person, depending on the jurisdiction), will arrive at the scheduled time, and supervise the landlord’s forced entry into the leased property. It’s important to note that it’s the landlord’s responsibility to actually enter the property, whether with a key or a locksmith. If the tenant remains inside the leased premises, the sheriff will remove them, but it is the landlord’s responsibility to remove the tenant’s belongings. (Note: some states and counties have specific requirements for what the landlord must do with the tenant’s personal property, so be sure to inquire about local laws.)
The landlord should arrive early to the eviction, with several contractors or other workers to help remove any possessions, and a means of entering the property if they don’t have a working key. The locks should be changed on the spot, to prevent the tenant from regaining entry to the leased premises, and the contractors should immediately perform any necessary maintenance or repairs necessary for the premises to be leased to the next tenant. The landlord should start advertising for new tenants immediately, to minimize
the vacancy period.
Eviction Process Summary
The two most important points a landlord should understand about evictions are that they must adhere to state and local laws and forms, and they must move immediately at every step of the eviction process, because it is can be a very long and expensive process. In addition to acting legally and quickly when handling evictions, it’s critical that landlords practice prevention, by screening prospective tenants for credit, criminal, and eviction histories, because these histories tend to repeat themselves.
Brian Davis is a seasoned landlord and marketing professional. As Vice President of online company EZLandlordForms, Brian Davis works to empower landlords and property managers across the United States with valuable information and documents to support their work.
Brian, with over a dozen rental properties of his own, understands what it takes to be an effective landlord through first-hand experience.
Mr. Brian Davis graduated cum laude from University of Delaware’s Honors Program, with a degree in Psychology and a degree in Criminal Justice. From 2003-2006 he managed the Real Estate Department for Bay Capital Corporation, a national mortgage lender. From 2006-2008 he served as an account executive and property inspector, overseeing the renovation of dozens of properties for a private lending company. He joined EZLandlordForms in 2008.
This post is provided by REIClub.com for creative real estate investors. Copyright 2002-2011 All Rights Reserved. Published with Permission of Author.No part of this publication may be copied or reprinted without the express written permission of the Author and/or REIClub.com.
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