If you’re a landlord, you know how hard it can be to evict someone. It’s not just a matter of removing the tenant—there are a lot of legal hurdles you have to jump through first. In this guide, we will look at the entire legal process of an eviction and how you can handle potential problems with the tenant.
How It All Starts
The eviction process begins when the tenant breaks a provision of the lease or agreement between the owner and the tenant, the two parties aren’t able to agree how to handle the dispute, and the tenant refuses to vacate the unit that he or she occupies. The eviction forms differ by state; copies of the appropriate forms you will need are available at your local court.
Notice to Quit
The owner will serve upon the tenant a notice to vacate the unit. This notice has different names, but the most common term is “notice to quit.”
The notice to quit (again, depending on the state in which you own property) will have to be served on the tenant in a manner allowed by the state in which your property is located. The notice will have the name or names of the tenant, the address of the unit, and the reason the notice is being sent. You should also include the names of John and Jane Doe if you think other people might be occupying the unit along with your tenant.
Some states allow the notice to be served by an impartial person, a law-enforcement official, or a sheriff. Some states allow the notice to be mailed by a specific method; again, this depends on the rules of your state. Some states allow the notice to quit to be handed in person to a tenant in the household who is over a certain age, such as 12.
The notice can give the tenant an amount of time in which to cure the problem (such as in a nonpayment of rent notice, by paying the rent), or it can tell the tenant that he or she must vacate the unit by a certain date as prescribed by law.
Summons and Complaint
The next step begins after the date listed in the notice to quit. This step is referred to as the summons and complaint of the suit being brought against the tenant in a court of law.
This summons will be served on the tenant, will give the tenant the name and address of the plaintiff (you), and will list him or her as the defendant. The summons and complaint will also explain the reason for the action and will allow a period of time, usually known as an “answer date,” to respond to the complaint.
How the summons is delivered to the defendant will depend on the rules of the state in which you own property.
The next step is to file the summons with court. This needs to be done before the answer date so that the court will be ready to proceed with the case when replies are made.
Your Day in Court
The day you go to court, you should bring with you all the proof you need to prove your case to the court.
Bring the pictures you took of the damage or your original records of the payments made by the tenant as well as the lease and/or rental agreement that the tenant signed. You may also need a certified copy of your deed and a certified copy of your certificate of occupancy (if one exists).
If you have a witness, bring him or her with you. If the witness is employed and cannot attend the hearing, you need to subpoena the person to the court. The papers needed to subpoena a witness are available at the court.
Next, the case will be called by a court clerk to determine whether it is ready to go to trial. Upon hearing your name being called, you should answer that you are there and are ready to go ahead.
Depending on the state or the court you are using, what happens next could differ. In some courts, you will be assigned to a mediator or a housing specialist who will speak with you and the tenant to try to arrange a settlement to which both you and the tenant will agree. If an agreement is reached, it is called a stipulated judgment.
The stipulated agreement (stip) will have the terms and conditions to which the tenant will conform as well as specified time periods for the terms and conditions. After the stip is agreed to, you and the tenant will reenter the court. A judge will ask you and the tenant whether you understand the conditions of the stip and whether the agreement is “your free act and deed,” meaning that you are doing this of your own free will. If you both say yes, the judge will make the stipulations a court order in the case. (States may differ in what the judgment is called or whether it is a judgment at all.) If you cannot agree to a stip, your case will be assigned to a judge to hear and make a decision as to what will happen in your case.
In some courts, you will not see a housing specialist. Instead, you will appear in front of a judge who will listen to both sides of the argument and make a decision in your case. The judge might make a decision on the spot or might reserve the decision for a later date and mail you (plaintiff) and the tenant (defendant) the decision when it is made.
Failure to Appear
If the tenant fails to appear in court on the day of the hearing, you can request that the court grant you a default judgment for failure to appear. A tenant can request a continuance to another date if he or she can’t make it to court that day.
Depending on the reason given and the attitude of the court, the court may assign a new court date, and you will have to come again. The same holds true for you, but don’t try it. Your reason for not showing up might not be accepted by the court, and you will lose the case for failure to appear. If this happens, you will need to start all over with the eviction.
Failure to Comply
If the tenant fails to meet a provision of the stipulation agreement, you can file a judgment for failure to comply with the court. The court can sign the judgment or can assign a court date to hear the motion.
If you find yourself back in court, the process starts over with sitting down with the housing specialist or a judge or a commissioner of the court, and a new agreement between you and the tenant could be made. Sometimes this can go on and on with the tenant failing to perform to the stip. And the court could continue to give the tenant another chance.
The Judgment and Execution
If the judgment is granted to the plaintiff, this means you are getting near the end but are not there yet. You need an execution to remove the tenant from the dwelling, and some states have a waiting period between the date of judgment and the date you can apply for an execution. The waiting period is usually five days, but your state could be different.
Once you have the execution, you will give it to a law-enforcement official recognized by the court to carry out an eviction of the tenant from the property. This official will notify the tenant and the town that, on a certain date, the tenant will be removed from the premises along with his or her belongings. Some officials require a moving company to remove the belongings from the dwelling to the street; others don’t.
On the day the official goes to the dwelling to remove the tenant, if he or she finds someone else occupying the unit other than the person you evicted, you might have a problem. This is why you need to evict John and Jane Doe along with your tenant.
The official should make an inventory of what is being removed. After everything is removed, the official will turn the dwelling over to you, and you will be able to change the locks and re-rent the unit.
The sheriff, marshal, or court official will make arrangements for the removal of your evicted tenant’s belongings and store them for a period of time for the tenant, sometimes at a cost to the tenant and sometimes without a cost. In some states it is the landlord’s responsibility to store the tenant’s belongings for a “reasonable period of time.”
Tenants can slow down the process by filing all sorts of motions, and a motion to reopen the case can be filed with the court after the judgment. Again, you need to know the laws of your state to determine what you and your tenant can do during the case.
As you can see, the eviction process is complicated, costly, and nerve-racking for a landlord—it’s definitely not for the weak of heart. But now that you know everything you need to do to legally, hopefully the next time you have to evict a tenant the process will go smoothly. Good luck!