Proper Eviction Procedure

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A landlord generally does not have to renew leases and can choose to raise the rent or rent to someone else before the next lease is signed. Otherwise, removing a tenant requires following detailed procedures. In order to evict a tenant, a landlord typically needs to provide a notice to quit, serve notice of an unlawful detainer case, and then win a case in court. Landlords should be aware of the many defenses that are available to tenants. Note that these procedures may vary by jurisdiction.

Process

Landlords cannot just take your stuff and throw it outside nor can they kick you out by physical force. They need to follow a formal process.

Step 1: Notice to Quit

To legally evict a tenant, a landlord must first give the tenant proper notice to move out or fix the problem for which they are being evicted (like pay the rent). This notice is called the Notice to Quit, Terminancy of Tenancy, Notice of Termination, Notice to Vacate, Notice to Cure or Vacate, or various other names. If the tenant does not do what the notice asks within the specified timeframe, then the landlord can file an unlawful detainer (eviction) case. Most jurisdictions have their own legal requirements for proper notice, which detail what exact terms must be in the notice. If the landlord’s notice does not comply with the requirements, the tenant will have a defense to the eviction.

Step 2: Filing and Eviction Case

To lawfully evict a tenant, a landlord must use the court-administered eviction process of the state or local government. Often, cities or localities will have specific landlord-tenant courts that reduce the cost and formalities of traditional court. For example, in some landlord-tenant courts, both parties just show up to a courtroom on the scheduled date with whatever documentation they have available and make their arguments to a judge.

In most states, the landlord must file an unlawful detainer (eviction) suit against the tenant in state court. If a landlord files a complaint that has some technical defect or does not properly allege the landlord’s right to evict the tenant, the tenant may file a demurrer. If the court grants the demurrer, the landlord will have to refile the case correctly before the case can proceed.

Step 3: Serving Papers to Appear in Court

Serving papers to appear in court is a legal process that requires certain documentation that the defendant has received notice of the action. Most jurisdictions also have their own detailed requirements for proper service. If a landlord did not properly serve the papers (i.e., the summons and the complaint), a tenant may file a motion to quash service of summons. If the court grants the tenant’s motion, the landlord will have to properly serve the tenant before the case can proceed.

In some circumstances, the landlord does not have to serve the tenant papers before filing an unlawful detainer case. For example, if the tenant gives the landlord notice that they will be moving out, but does not, then the landlord can generally file an unlawful detainer case right away.

Harassment to Force Tenant to Move Out

To lawfully evict a tenant, a landlord must use this court-administered eviction process of the state. A landlord cannot use self-help measures to force a tenant to move. For example, a landlord cannot physically remove or lock out a tenant, cut off utilities such as water or electricity, remove outside windows or doors, or take a tenant’s belongings to carry out the eviction. State law may also make it unlawful for a landlord to attempt to influence a tenant to move by engaging in conduct that constitutes theft or extortion; using threats, force, or menacing conduct that interferes with the tenant’s quiet enjoyment of the rental unit; or committing a significant and intentional violation of the rules limiting the landlord’s right to enter the rental unit. If a landlord uses unlawful methods to evict a tenant, they may be liable for the tenant’s damages and other financial penalties.

Fake Evictions

Landlords may be frustrated with the time and effort it takes to evict. However, posting phony eviction notices is illegal and considered harassment.

Licensed Business

Some state and local laws require certain or all landlords to be licensed by the government. Landlords should not try to evict a tenant if they have not been properly licensed where required, since they may have been violating the law.

Eviction After Accepting Partial Rent Payment

The landlord typically waives their right to evict by engaging in conduct that implies that they have reached an agreement other than payment of rent. For example, if a landlord accepts partial payment and doesn’t follow up about the remaining portion for a few months, they may have implicitly agreed to have accepted that partial payment in exchange for full payment. Similarly, if the due date for the rent is 1st, and the landlord has consistently allowed tenants to pay late without penalty, the landlord cannot later claim the right to late fees.

Eviction from Property in Bad Condition

If the tenant has damaged the property, the landlord may be entitled to evict on a faster time frame. Most states require a landlord to terminate a tenancy by giving the tenant proper advance written notice (for example, 30-day notice to end a month-to-month tenancy). However, a landlord may terminate a tenancy with a shorter notice (3-day notice) if the tenant has materially damaged the rental property in certain states.

In certain states, tenants can withhold rent if the apartment is in bad conditions and the landlord is refusing to make repairs. If the tenant is not paying rent because the apartment is in bad condition and they have followed proper legal procedures for doing so, the landlord cannot evict that tenant.

Constructive Eviction

Under the “implied warranty of habitability,” landlords are responsible for providing and maintaining habitable dwellings for tenants. States set their own standards of habitability, but generally, it means the dwelling is safe and sanitary, and complies with building and health codes that affect the tenants’ health and safety. Local codes often include detailed rules on a broad range of housing issues and landlords are responsible for making these fixes. Landlords and tenants should check their local codes for the applicable rules.

Constructive eviction occurs when a landlord fails to fix issues within a reasonable time and the dwelling becomes uninhabitable. The tenant may then abandon the unit by giving the landlord notice and moving out within a reasonable time (see state or local law for specific timeframes). The abandoning tenant will not be liable for future rent and may sue the landlord for damages.

Retaliatory Eviction

Landlords cannot typically evict tenants as a way of retaliating against them for using their rights. For example, if a tenant joins a tenant association or hires a lawyer, the landlord cannot evict the tenant from the property. However, there are exceptions based on the jurisdiction (New Orleans is a notable example).

By |February 22nd, 2018|USA|

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