The Eviction Process

Eviction is the legal process of removing a tenant from a rental property before his or her lease expires. Landlords can only evict tenants for certain reasons and must follow certain procedures (the specifics of which vary by state and city) – they cannot simply change the locks and put all of the tenant’s possessions on the front lawn without notice.

The following is a general overview of the eviction process:

  1. The landlord sends a termination notice to the tenant. There are three basic types of notices:

    • Pay Rent or Quit: This is used when the tenant is delinquent with the rent. The tenant is given a limited period of time (usually three to five days) to pay the delinquent rent or leave.

    • Cure or Quit: This notice is given after a violation of a condition of the lease, such as keeping a pet when there is a no-pets rule. The tenant is given a set amount of time to correct the violation or leave.

    • Unconditional Quit: This is an order to vacate the premises where there is nothing the tenant can do to be allowed to stay. In most states, unconditional notices are only permitted when the tenant has repeatedly not paid the rent or violated a rule, seriously damaged the unit, or engaged in certain illegal activities.

  2. When the deadline in the termination notice passes, the landlord files an eviction (Unlawful Detainer) lawsuit with the local court. The tenant is served with a Summons to appear in court and Complaint listing the facts of the case. He or she is given a certain number of days to submit an Answer to the court, stating which facts in the Complaint are true and which are false. (If the tenant does not file an Answer, typically, a default judgment is entered against him or her.) The tenant can also state an affirmative defense – a fact or set of facts not listed in the Complaint that legally justify his or her actions. Possible defenses against eviction include:

    • The landlord has not kept the property in a safe and habitable condition.

    • The landlord failed to comply with proper eviction procedures.

    • The landlord had previously accepted payments late and is now using it as grounds for eviction.

    • The landlord is retaliating against a tenant who exercised his or her rights (e.g., reported a health or building code violation).

If you are served, you may want to seek legal assistance with answering the Complaint. Hiring a lawyer is one option, but if that is not affordable, there are books available on the topic, and there may also be a local tenant rights group that assists tenants facing eviction for free.

  1. In many states, the tenant has the right to redeem his or her tenancy and stop the eviction by paying all of the costs owed to the landlord before the court date.
  1. The court hearing is held. The judge listens to the testimony and reviews the evidence presented by both sides then makes a ruling. If the tenant wins, the tenant can remain in the property. If the landlord wins, the court orders the tenant to hand over possession of the unit to the landlord, and a judgment is entered against him or her for the amount owed to the landlord (typically the unpaid rent, late fees, court costs, and landlord’s attorney’s fees). A default judgment may be entered against the tenant if he or she fails to appear in court. In most jurisdictions, tenants are given a limited number of days to appeal the ruling.
  1. The landlord obtains a Writ of Execution from the court and gives it to the local law enforcement agency. The sheriff gives notice to the tenant to vacate the unit within a certain number of days. If the tenant does not comply, he or she can be forcibly removed from the premises. In most states, the tenant’s wages may be garnished to satisfy the judgment.

Avoiding Eviction
If you are in a situation where you know you will not be able to pay your rent, you should contact your landlord as soon as possible. If the problem is temporary, you may be able to work out an alternative payment agreement (e.g., pay half the rent on the 1st and half on the 20th). If the problem is permanent, the landlord may be willing to voluntarily release you from your lease. If not, you can generally be let of the hook for the rent remaining under the lease’s term if a replacement tenant is found.

Finding a Place to Live
If you are evicted and do not have a place to live, investigate what emergency/transitional housing is available in your community. You can contact your local information line (in many locations, you can get a directory of social services by dialing 211 or 311) or HUD (US Department of Housing and Urban Development) at 800-955-2232 or www.hud.gov/homeless/hmlsagen.cfm.
Copyright © 2011 CCCS Close Window