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What You Should Know About Eviction

September 19th, 2008 · 1 Comment

Eviction is a legal action from a court that is used by a landlord to remove a tenant from a rented property.  Depending on the jurisdiction, eviction may also be called unlawful detainer, summary possession, summary dispossess, forcible detainer, ejectment, or repossession.  However, whether you are a landlord, or a tenant, it is important to understand how an eviction process actually works.  Despite what some may think, a landlord cannot legally evict their tenant without the use of the court procedure. If a landlord tries to remove a tenant from property without following the correct procedures, they could be the ones who could be liable to the tenant.  The laws will vary by jurisdiction, however, there are some universal principles that apply to an eviction.

Notice is the first step required to proceed with an eviction.  If a tenant is late on their payments or has violated a term of the rental agreement, typically the landlord must provide the tenant with notice of this and provide them with a time period to fix the situation. However, as mentioned before, the guidelines and time frames will vary by jurisdiction. This notice must be given before start any formal legal proceedings. The notice may be called “notice to quit” or “notice to vacate.”  The time period for notice can vary from 3 days to 10, and will vary depending on the jurisdiction, what needs to be fixed, and any terms in the rental agreement.  For example, if a tenant is late on their rent, most jurisdictions require that the landlord allow anywhere from 3 to 5 days to pay the delinquent rent.  Yet, if there was a violation of the lease, such as smoking, most jurisdiction require around a 5 to 10 day period to fix the violation.

If there was a serious violation of the lease, then most jurisdictions allow landlords to present tenants with an eviction notice without the opportunity to correct the violation.  In most states, landlords are also permitted to provide an eviction notice to a tenant without showing cause, however the time period for notice is longer, usually 30 or 60 days.

After the notice period, the landlord can than proceed to file the eviction action with the appropriate court.  Typically, eviction matters are handled in a civil court of general jurisdiction, however, in some areas, there may be special courts or special divisions within a civil court.  If you would like to find out which court handles eviction matters in a particular jurisdiction, www.CourtReference.com offers a chart detailing which cases are heard in which court for every state in the US.  Once the eviction action is filed with the court, the landlord must serve the tenant with the summons and complaint.  The methods of allowable service will vary by jurisdiction, but generally, the landlord cannot be the one to serve the papers on the tenant. A third party must perform Service.

After the tenant has been served with the summons and complaint for the eviction action, they then are allowed a certain time period to respond, or answer.  If the tenant does not answer, then the landlord can file for a default judgment.  If granted, this means they have automatically won the case, and now have the legal right to evict their tenant. If the tenant does file their answer with the court, then the court sets a date for trial.  Unlike most legal proceedings, eviction actions go through an expedited court process.  In the tenants answer, they can provide defenses as to their action.  If the tenant wins the trial they can stay on the property.  However, the reason for the eviction action due to late or non-payments, they will be required to pay any monies due.  On the other hand, if the landlord wins, then they now have the right to evict the tenant.  However, landlords cannot perform the eviction themselves.  The landlord must present the court order to the sheriff, who will then post a notice for the tenant, instructing them of when they must vacate the property.  The tenant will usually have less than one week to move out.  If the tenant has not left the property after the time period prescribed by the sheriff’s notice, then the sheriff has the right to enter the property to remove the tenant and their belongings.

It is interesting to note that in most states, at no time is the landlord permitted to enter the premises and remove the tenant or his/her belongings from the property.  Nor can a landlord use means such as changing locks or shutting off utilities to force a tenant out.  These are referred to as self-help evictions and are generally illegal.  To learn more about the time frames and other eviction standards in your area, www.CourtReference.com also provides links to rules and legal research resources.

clperkins82

Tags: Courtreference.com · Uncategorized

1 response so far ↓

  • 1 Maryann // Nov 7, 2012 at 4:59 am

    Tenants have all the rights. What if there is no lease.

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