Whether a renter has defaulted on rent, are in breach of contract, or otherwise; Eviction procedures can be a daunting and confusing subject.
Eviction is defined as “the action of expelling someone, especially a tenant, from a property.” But what does that mean and how does the process actually play out?
If the required notice has been delivered to a resident and they do not voluntarily vacate, the landlord can move to evict them.
There are several steps to expect when going forward with an eviction.
1. Unlawful Detainer
The landlord would first need to file an unlawful detainer lawsuit in superior court. An unlawful detainer is a summary court procedure and in most cases, court action moves along quickly. The landlord would be listed as the “plaintiff” whereas the resident would be listed as the “defendant”.
2. Resident Response
Residents are given the opportunity to respond to the unlawful detainer notification. Essentially this is their initial opportunity to share their side of the story. They can note the condition of the housing and any points they deem valid to add to the case.
The court will hold a hearing where both parties can present their evidence and explain their case. The judge will then decide the verdict and rule in favor of either the landlord or resident.
4. Writ of Possession
If the court rules that the landlord is victorious and the resident needs to vacate, a writ of possession will be issued to the local sheriff’s office and a lock out date will be scheduled. If the resident does not vacate, they will still be locked out of the home.
5. Resident Wins
If the court rules in favor of the resident, they will not be evicted and depending on the lease agreement, the landlord may have to pay the resident’s attorney fees.
There are many important factors to consider before filing an unlawful detainer with the court. Depending on the facts of your case, it may be advised that the resident file a Motion to Quash Service of Summons or a Demurrer instead of a simple response.
Eviction can be a difficult process and in the end, nobody really wins. Legal fees, loss of rent, and moving expenses are just a few of the consequences suffered on both sides of an eviction. At Real Property Management, our goal is to provide you, the property owner, with a quality tenant to hopefully avoid such issues in the future. If eviction is unavoidable, whether you are a landlord or a resident, it is best to contact an attorney for guidance and assistance through the eviction process.
The Eviction Process: The Tenant’s View
Eviction can be a scary and earth-shaking experience for anyone. Whether you lost your job, had a family emergency, or you irrevocably damaged the property, being legally required to vacate the property can be a daunting and overwhelming task. As a resident, it is smart to arm yourself with the knowledge of what is and is not acceptable.
Myth: I Can Only Be Evicted if I Stop Paying Rent
It is true that the nonpayment of rent is the easiest way to evict someone, but it is not the only reason you can be kicked out. Any breach of contract can ultimately land you in the same situation. Damaging the property, having illegal pets, over occupying, or any other breach of the agreement that you made with the landlord could be grounds for eviction.
Fact: Instead of receiving a notice to pay rent or quit, you may be served with a notice to perform or quit. This notice means that you need to rectify whatever the trouble is cited within a given time frame or you may be evicted. These notices should be treated just as seriously as a notice for nonpayment in order to preserve your residency.
Myth: I Don’t Need a Lawyer and Will Fight it Better Alone
Fact: The first thing to do when receiving an Unlawful Detainer is to hire an attorney. You have a limited amount of time to respond in writing to an unlawful detainer and if you don’t respond, the landlord can receive a default judgment against you and force you to immediately vacate. These forms can be confusing and sometimes misleading. If you cannot afford an attorney, there are various tenant organizations, tenant-landlord programs, housing clinics, legal aid organizations, or private attorneys who offer free advice. Even if you are at fault, it is best to consult an attorney and receive help through the process.
Remember, the legal counsel will need copies of the following:
- Copy of your lease agreement
- Any written documentation/logs of problems
- Written notice that you were provided prior to unlawful detainer
- Paperwork for unlawful detainer
- Photographs of any deficiencies in your home
You may have a good legal case if:
- The three-day notice was inaccurate – requested more rent than was due, was filled out improperly or has not yet expired.
- The housing in question violates the implied warranty of habitability
- The eviction action was in retaliation for the resident exercising their resident rights or because the resident complained to an inspector about the condition of the housing.
Myth: My Landlord Can Lock Me Out or Discard My Belongings without Notice
A landlord is NOT allowed to change locks or otherwise bar you from entering your place of dwelling without first obtaining permission from the court. They must file an unlawful detainer with the court and start the eviction proceedings. Even then, a date and time will be set with the County Sherriff to come and physically lock you out of the property if they win the court hearing.
Fact: If you receive a notice of lockout from the court it is best to move out as quickly as possible. Lockouts can be scheduled quickly and it is better to be prepared by preemptively removing your belongings.
If you are unable to move your belongings before the scheduled lockout date, you may be able to arrange to pick up your belongings at a later date. This varies by state, so check with your attorney to find out if you will have options or if your possessions left in the home will be surrendered to the landlord.
Myth: My Landlord Can Refuse Service While I am Waiting for My Court Date
The housing that you are living in needs to remain in habitable conditions at all times. What is considered habitable varies by location. If you are living in a home and the heater no longer works, it may be required for your landlord to make the repairs, even if you are currently waiting for your court date on a pending eviction.
Fact: Even if you are being evicted for nonpayment of rent and have not paid for a month, the landlord is required to make reasonable and required repairs. Do they need to perform upgrades and aesthetic repairs for you? No. But all necessary fixtures should be in good working order.
If it is not or you are refused service, document damages with photos, date and time of requests, conversation logs, and any other information that could be used in court to prove negligence in habitability on their part.
Myth: If I Win the Judgement, I am Protected from Future Evictions
If the court rules in your favor, congratulations. There may be a payment plan that has been implemented to get your rent paid up or further action that must be taken to put you back in good standing. Whatever is required, take care of it quickly and take it seriously. Be careful though, most of these written agreements have a stipulation that if you default on your side of the deal even once, you will immediately forfeit your judgment and be kicked out.
Fact: The landlord is NOT allowed to treat you differently or hold the eviction process against you. They must treat you like all of their other residents. That being said, if you stop paying rent or breach your agreement again, they can refile an unlawful detainer on you at any time. There is no limitation on how many times you can be filed against as long as it is for a well-founded purpose and not a form of harassment.
By renting from a professional property management company like Real Property Management Excellence, you know that even if things turn bad with an eviction, our offices understand the laws and your situation will be handled professionally.
The Eviction Process: The Landlord’s View
Serving an eviction notice can be overwhelming for both sides. Let’s take a look at the eviction process from the landlord’s point of view…
The eviction process for a landlord is not always easy and many legal concerns need to be addressed. Whether your resident forgot to pay rent, recently lost a job, or has broken community rules and has been unwilling to rectify the situation; you can receive an unlawful detainer and evict the resident from your property. Most residents facing eviction are being evicted due to non-payment of rent. However, you can also evict residents for violating the terms of their lease, creating a safety hazard, or other landlord disputes. Landlord/Tenant law can vary greatly between jurisdictions so it is important to consult with a lawyer for legal advice if you are obtaining an unlawful detainer against a resident.
Your Tenant Failed to Pay Rent This Month
If you are evicting a resident for non-payment of rent, there is a strict process that you must follow.
Notice to Pay Rent or Quit: The resident must first be served a notice to pay rent or quit which gives them a certain number of days to make payment. The number of days the resident has before payment must be received will vary by state. Some states are very specific regarding the information that must be provided on the notice, for this reason, it is best to consult with a lawyer to verify that the form you use meets local and state law. If you post the wrong information or omit information that must be included, the notice can be made invalid by the court which will cancel the eviction process. The method in which this form is delivered is also regulated by the state. Some require delivery in person while other states only require the notice to be posted on the door at the property and mailed to their address.
Unlawful Detainer: If the resident does not make payment within the number of days indicated on the notice, then you may file an unlawful detainer with the court. You must wait for the Notice to Pay Rent or Quit to expire before filing an unlawful detainer.
Partial Payment: Some landlords choose to accept partial payment with a promise from the resident that the rest of the funds will be paid by a set date and time. If you choose to take a partial payment, immediately post a new notice to pay rent or quit for the remaining balance of rent due. If you do not serve a new notice, the original notice is void when you accept any funds. By serving a new notice, you are protecting your ability to evict if the resident does not pay the remaining rent by the agreed upon date.
Non-Payment for Needed Repairs: Some residents believe that they can legally withhold rent if there are requested repairs that have not been made on the home. This is not always the case, but sometimes funds can be withheld in an escrow account or within the court system if the repairs requested are to maintain the home in habitable conditions. Consult with an attorney to make sure that you are legally able to deny the work requests that are in question. If the attorney advises you that work is required, immediately post notice to the resident and repair any necessary items. If the resident still refuses to pay rent, continue with eviction proceedings.
Violation of the Lease
If you believe a resident is in violation of their lease agreement, it is best to double-check their actual agreement. Sometimes lease agreements are altered over time and it is best to be sure of the violation and its validity to the resident in question before action is taken. If you find that a resident is in violation of their agreement, you can serve them a Notice to perform or quit.
Your resident will then be able to do one of the following:
- Rectify the situation immediately
- Negotiate with you for an exception to the rule (increased deposit, written permission, etc)
- Mutually agree upon move out terms
For example, the lease states that there are no pets allowed in the home. The resident acquired a pet without permission. Once receiving a notice from you, the resident’s three options would be to get rid of the pet immediately (perhaps a friend or family member could take the pet), try and negotiate an additional pet deposit or cleaning to cover any concerns of damage, or receive temporary permission to keep the pet if they put in notice to move within an agreed upon amount of time.
If they choose to do none of the above, you can file an unlawful detainer for breach of the lease. Be careful with this type of eviction though. It is much less straight forward than the non-payment of rent. This is more of a he said/she said situation so documentation is key. Photos, conversation logs, letters to rectify the situation, and a copy of the perform or quit will be vital in your case.
Encountering Health and Safety Issues
If the home was within habitable conditions when the resident moved in but is no longer in suitable condition due to their actions, you can evict them. Whether the health hazard is due to drug use in the home, hazardous materials, hoarding, insect infestation, or other damage it is all counted the same. The resident could try to slow down the eviction process and prolong tenancy by making repairs to bring the home back up to code, but it will not guarantee that they will get to stay.
Please note that you are legally responsible for providing habitable conditions in the housing that you provide. These regulations vary by state and sometimes city, so it is best to check on your local statutes for guidance on what must be provided. (Ex. Heat, hot water, access to common areas, compliance with building codes, etc). If the home is inhabitable due to poor management, the resident may have a case against you. Make sure that all repairs requested have been completed in a timely manner and that you have attempted to rectify any habitability conditions prior to evicting for this purpose.
Contact an Attorney Immediately
If you have to file an unlawful detainer notice, do not try and do it yourself. Many cities, counties, and states have specific regulations and guidelines that must be strictly followed in order for you to have a solid case. One fowl up can cost you time and money so it is best to ensure that the process is done correctly the first time. An attorney will help you to prepare the unlawful detainer and ensure that your notices and documentation were served correctly. The court system can be confusing and if the proper forms are not filled out in a timely manner, you may end up unable to secure judgment and move forward with your rental property.
A Few Last Words of Advice
Sometimes the best thing for your resident to do is move out immediately. If for some reason they are unable to move right away, they may come to you to create an exit strategy that works for both parties. Make sure that you put this agreement in writing and that both parties sign. In these instances, communication is key. If they are honest and proactive it may be in your best interest to negotiate with them rather than proceed with an eviction.
Regardless of if the resident is going to push for a trial or not, document everything:
- Take photos of areas that are in question
- Pull together documentation of maintenance requested and performed
- Make a copy of the lease agreement, highlighting the points you feel validate your case
- Keep a written record of the conversations that you have with the resident, make sure you log date, time, and location of all conversations
These will all be valuable tools if you have to go to court, plus it is just good practice for any landlord.
One advantage of hiring a professional property manager is not having to deal with the hassle of the eviction process. The property managers with the Real Property Management franchise system understand the local and state laws dealing with eviction, not to mention the fair housing laws and other best practices for finding good, qualified tenants so you, the property owner, hopefully never have to deal with an eviction.
We are pledged to the letter and spirit of U.S. policy for the achievement of equal housing opportunity throughout the Nation. See Equal Housing Opportunity Statement for more information.