Neither the landlord nor the tenant “wins” in the eviction process, also called “forcible detainer” or “unlawful detainer.” The landlord may incur legal fees and cleaning and advertising costs, and it may have a vacant property during the process. Tenants incur moving expenses and may hurt their credit ratings. The problem can often be avoided by simple habits. Tenants should realize that they have no grace period for paying rent late unless the lease specifically says so. They should avoid paying rent in cash and keep a receipt or a copy of the check or money order. Landlords should apply rules even-handedly and immediately object to violations so that tenants are not lulled into thinking that the rules have relaxed.
The eviction process begins with notice. State laws provide the details concerning how much notice is required and how the notice must be delivered or served on the tenant. These laws provide for different types of notice. Terminology differs from state to state. Both parties should be familiar with state law. Tenants can sometimes delay the process by identifying a problem in the type of notice or how notice was given.
A notice that allows the tenant to remedy or “cure” the problem is sometimes called a “cure or quit” notice, or an X-day notice. If the tenant has not paid the rent, he or she is given a few days (three to five in most states) to pay the rent or move out. If the tenant has violated another term or condition of the lease, such as by parking in an unauthorized spot or keeping a pet in a no-pets building, some states give a longer period to cure or vacate. Not all states require the second chance provided by this type of notice.
An unconditional notice requests the tenant to vacate the premises with no chance to pay the rent or correct a lease violation. In most states, unconditional notices are allowed only when the tenant has repeatedly violated a significant lease clause, been late with the rent more than once, seriously damaged the property, or engaged in serious illegal activity, such as drug dealing on the premises.
If the tenant has not done anything wrong, the landlord may give notice to end the tenancy in accordance with the terms of the lease. If there is no written lease that dictates the required notice, state law dictates how much notice is required. In most cases, the notice mirrors the term of tenancy. For example, a tenant on a month-to-month lease is entitled to one month’s notice. If the property is in a rent-control jurisdiction, the landlord may be prohibited from evicting a tenant for no stated reason. If the property is part of a condominium conversion, state law may require additional notice and even relocation assistance.
If a tenant fixes the problem after receiving a cure or quit notice, the tenant should obtain written verification of having paid the rent or resolved the situation within the time allowed. Partial payment, payment after that time period, or nonpayment because of personal misfortunes such as losing a job, being the victim of a crime, or suffering from an illness, are not defenses to eviction. If the landlord and tenant do reach an agreement concerning acceptance of partial or late payments or any other modification of the lease, it should be in writing and should state whether the landlord is giving up the right to evict for this violation.
While a tenant who reports a building code violation to appropriate authorities is generally protected against retaliation in the form of eviction, tenants in many jurisdictions are not permitted to withhold rent based on building conditions or other problems with the landlord. An exception may exist for conditions that render the property uninhabitable, but this varies from state to state. A tenant should not withhold rent without consulting a lawyer.
In recent years, many tenants have faced eviction without fault because the landlord failed to pay the mortgage or taxes and lost the property in foreclosure. Federal and state laws have given tenants protection in the case of any foreclosure on a federally related mortgage loan, require new owners to honor leases in most situations, and entitle tenants to extended notice.
Sometimes, a tenant will decide to vacate and give the landlord the key rather than fight eviction. In such cases, the landlord may still be able to file suit and obtain a judgment for damage to the property or for unpaid rent through the lease period, plus the expenses of filing suit. Leaving the premises does not end the obligation to pay rent under the lease.
Although a tenant’s decision to fight and raise defenses may delay the process, eviction is a fast process compared to other legal proceedings. Landlords are not entitled to speed things up by turning off utilities, locking the tenant out, or moving the tenant’s belongings out of the property. Generally, the landlord must obtain a court judgment and pay a fee to have local law enforcement officers physically remove the tenant. Some states allow landlords to dispose of property a tenant leaves behind after moving out if it is clear that the tenant has left permanently. In other states, landlords must follow storage and notification procedures.