The Eviction Legal Process for Landlords
Sometimes no matter how hard you work to find and screen tenants who will be reliable and cooperative, it is necessary to end a tenancy under less than ideal circumstances. Tenants who repeatedly fail to pay rent, have unauthorized pets or subtenants, engage in illegal activity, or otherwise violate the terms of their lease or rental agreement in a significant way are not good for your business, and you may be at the point of determining what steps you need to take to move them out. State laws can vary significantly regarding the rules landlords must abide by in these situations. Regardless of where your rental property is located, it will always be to your benefit if you have kept careful business records, conducted yourself in a respectful and professional manner, and have thoroughly checked the legal requirements you must meet in order to terminate a tenancy or evict a tenant. You must also be mindful of the prohibitions against pursuing a termination or eviction with a retaliatory or discriminatory motive.
Termination Comes Before Eviction
Even if you feel you have clear grounds for eviction, in most cases you still need to formally terminate a tenancy before you can pursue eviction proceedings. Laws vary by jurisdiction with regard to the rules you must follow before terminating a tenancy, such as specifying the different types of notice you must give and when. Particularly if your property is subject to rent control, landlords are typically held to strict requirements under these circumstances. Before moving forward it is important to make sure you have a strong case, and that you have considered alternatives that may be cheaper and faster, such as offering the tenant a sum of money to move out. Local small claims or civil court websites may also have helpful pointers regarding the processes you will need to follow if you are ultimately seeking an eviction.
Termination Notice Requirements
Unless the unit is rent controlled, when you want a tenant to move out, if you have a monthly rental agreement you can generally give the tenant 30 days’ notice to move, or if you have a lease, choose not to renew the lease when it ends. If the tenant has done or failed to do something that requires you to take action sooner, you can usually give them one of three general types of notice: 1) a notice to pay rent or leave, 2) a notice to stop breaking rules or “cure” any violations or leave, or 3) an unconditional notice to leave. Again, state law varies with regard to the contents and timing of these notices, so be sure to check your individual requirements carefully. In most places, however, it is not advisable to add any threatening language, extra commentary, or other content beyond what is legally mandated to a termination notice.
Failure to Pay Rent on Time
Perhaps the most common reason tenancies are terminated is a tenant’s failure to pay rent on time. When a tenant does not pay rent by the due date, some states require you to provide a grace period before you can give the tenant a pay rent or quit notice. Most notices provide three to five days for the tenant to pay the rent they owe. If the tenant pays and you accept the full amount of rent due, this cancels the termination notice. If the tenant pays part of what they owe, you can usually serve them with a new notice almost immediately. When a tenant is repeatedly late with rent, different states have different requirements for how many chances you have to give them. Regardless of the rules you are subject to, it is best to have kept thorough records of when a tenant has been late to pay, and any communications or notices you have sent to them as a result. It is also important to bear in mind that members of the military may be subject to less stringent rules with regard to how fast an eviction can take place.
Other Lease Violations
Landlords can terminate tenancies for lease and rental agreement violations other than nonpayment of rent, including unauthorized pets or tenants, repeated excessive noise issues, illegal activity, creating unsafe conditions on the property, or a significant omission on a rental application that subsequently comes to light, such as a relevant criminal conviction. With regard to illegal activity, many states do not require landlords to wait until a tenant has been convicted of a crime before evicting; indeed, when drug dealing is involved, some states impose an affirmative duty on landlords to act. In this context, typically an expedited eviction will take place following an unconditional quit notice.
In situations involving less severe violations, you must generally give tenants the opportunity to fix or “cure” the problem before moving forward with a termination, assuming the problem is not one that is recurring or impossible to correct. If a tenant lied about something material on their lease or rental application, such as a pertinent criminal conviction, you can usually end a monthly tenancy with a 30-day notice as long as you do not have discriminatory or retaliatory motives, though rent control and similar state law protections may prevent you from doing this. If your lease agreement or state law prohibits tenants from giving materially false information, that can be a basis for terminating and evicting if this occurs.
Eviction Lawsuits
After the deadline provided in your termination notice has passed, in order to get the tenant out of the rental unit you will need an eviction judgment and for law enforcement to inform the tenant that they need to move out by a certain date once that judgment is available. Eviction lawsuits usually take place in small claims or civil court, though in some jurisdictions there are special courts for landlord-tenant matters. Depending on the amount of money at issue, it can be worth it to reduce what you are seeking in order to meet your local small claims court cap. Small claims court is generally faster and cheaper, and has fewer formalities and complexities that the parties must navigate. However, if you have a strong case and are eligible to collect attorneys’ fees from the tenant, it may be worthwhile to bring your case in civil court.
To begin your eviction lawsuit you will file a complaint, which lists the facts leading to your conclusion that the tenant should be required to move out, and asks the court for an order requiring the tenant to leave and pay back rent and damages. Many courts have forms available that you can use for the complaint, and many other resources such as legal guidebooks have templates available as well. You will also include a summons, which is a document that lists the hearing date the court has given you for the lawsuit, and provides notice to the tenant of the lawsuit. These documents must be formally served upon the tenant in accordance with your state’s laws for service of process. Note that you cannot serve the documents yourself, and mistakes with regard to service of process are quite common, so be sure to follow any applicable rules closely. Once the tenant has been served, they are required to submit an answer, either in writing or in person depending on the jurisdiction. The answer serves to either deny your allegations or provide defenses. If the tenant fails to answer, the court will enter a default judgment in your favor.
In general, it can be a good idea to consult a lawyer if you are seeking to evict a tenant in an area subject to rent control, if the tenant is contesting the lawsuit in civil court, if the case goes to trial, or if you live far away from where the proceedings are happening. Further, keep in mind that “self-help” evictions, or trying to take matters into your own hands to get a tenant out of your rental property, are illegal and not only expose you to legal liability but will also undermine your case in a formal eviction lawsuit.
Tactics to Fight an Eviction
In response to an eviction lawsuit, a tenant may ask the court to stop or postpone an eviction on the basis of hardship or their inability to pay. While a court may delay an eviction due to an appeal or to give the tenant time to find new housing, the court is not likely to stop the eviction. If a tenant files Chapter 7 or Chapter 13 bankruptcy, an automatic stay will prevent eviction for a short period of time, but once the stay is lifted you can usually proceed with the lawsuit. If you obtained an eviction judgment before the tenant filed for bankruptcy, the bankruptcy filing should generally not impact your ability to effectuate it, though there are some exceptions.
Judgment
If you prevail in your eviction lawsuit, the court will issue an order saying you are entitled to have the tenant move out, pay you any rent owed and possibly include attorneys’ fees. Law enforcement will need a copy of the judgment to carry out the eviction. Note that it is often common to have to take steps to collect any monetary judgment, and you will likely need to enlist a collections agency. If the tenant prevails in the case, they do not have to move out. You may also have to pay their costs and fees, and the court may retain jurisdiction over the matter if there are questions as to the unit’s habitability until those issues are resolved.
