Eviction

Eviction

[ih-vikt]

Eviction is the removal of a tenant from rental property by the landlord.

Depending on the laws of the jurisdiction, eviction may also be known as unlawful detainer, summary possession, summary dispossess, forcible detainer, ejectment, and repossession, among other terms. Nevertheless, the term eviction is the most colloquially used in communications between the landlord and tenant.

Depending on the jurisdiction involved, before a tenant can be evicted, a landlord must win an eviction lawsuit or prevail in another step in the legal process. It should be borne in mind that "eviction," as with "ejectment" and certain other related terms, has precise meanings only in certain historical contexts (e.g., under the English common law of past centuries), or with respect to specific jurisdictions. In present-day practice and procedure, there has come to be a wide variation in the content of these terms from jurisdiction to jurisdiction. One should not assume that all aspects of the discussions below will necessarily apply even in all states or other common law jurisdictions.

The eviction process

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Notice

One should remember that the procedures for evictions are established by state law (within the United States) and that, even within the United States, they vary from state to state, and can even vary within a single state, in different cities or counties. The following are general rules only.

Depending on the jurisdiction, if a tenancy is being terminated for cause, the landlord may be required to give the tenant a notice, commonly called a notice to quit or notice to vacate prior to instituting formal legal proceedings. The tenant may have a short amount of time (perhaps from 3 to 10 days) in which to correct the error. The most common causes for eviction include nonpayment of rent or a breach of the lease (such as keeping a pet when pets are not allowed). In some cases, again depending on the laws of the particular jurisdiction, a landlord may post an unconditional quit notice, meaning the tenant can do nothing to correct the error.

In some jurisdictions eviction proceedings may be commenced without cause if there is no tenancy or the lease is expiring, although further advance notice must be given (generally 1 to 3 months). In some areas, just cause eviction controls exist, making this type of eviction more difficult or illegal. Rent control ordinances or statutes may also affect a landlord's ability to terminate tenancy without cause. Also, if the housing is subsidized by a housing program of the federal government, federal laws and regulations will also apply.

In most places, the guidelines for evictions due to non-payment of rent are different from those resulting from other causes, such as breach of lease. When the reason for eviction is due to causes other than rent, many places have laws requiring the tenant to be given a specified amount of time before moving, which may be, for example, 30 days following all court proceedings. But in the case of unpaid rent, eviction may occur within a few weeks (or less) following the due date for the rent. The exact amount of time is contingent upon the jurisdiction's guidelines and the load of cases in the jurisdiction's court system.

Summons and trial

If the tenant remains in possession of the property after the notice to quit has expired, the landlord then serves the tenant with a complaint. This requires the tenant to appear in court. If the tenant does not file an answer or appear in court, the landlord can then file for a default judgment and wins automatically. In the tenant's answer, they may state their side of the story, and provide affirmative defenses, such as the landlord not making required repairs or the tenant not being given proper notice.

When the answer is filed, a trial date is set. Eviction cases are often expedited since the issue is time-sensitive (the landlord loses rental income while the tenant remains in possession). If the judge sides with the tenant, the tenant remains in possession of the property, although any back rent due must still be paid. If the landlord wins, the tenant has a small window of time to move before the eviction takes place, generally less than a week, although the tenant can ask for a stay of execution if they need more time.

Right to redemption

In some jurisdictions, a tenant who has failed to pay rent is granted a right to redemption, unless otherwise specified in court documents. Right to Redemption would mean that the tenant may cancel the eviction and remain in the rented property by paying the full amount of rent due plus all other fees owed to the landlord allowable under the law.

In some of these jurisdictions, if the tenant continually fails to pay rent, resulting in the repeated filing of complaints by the landlord, the landlord may file for no right to redemption. This would mean that following an eviction trial, the case against the tenant would stand, and that the tenant could not remain in the property by payment of rent. The number of trials required before a landlord could make such a filing, even in jurisdictions so providing, varies by jurisdiction.

Removal from the property

The landlord obtains a writ of possession from the court and presents it to a law enforcement officer. The officer posts a notice for the tenant that the officer will return to remove the tenant from the property on a certain day. On that day, the officer may physically remove the tenant and any other people on the property if they are still there. Any possessions of the tenant still on the property may be put in storage for the tenant, or considered abandoned, depending on local laws. The property is then turned over to the landlord.

Self-help evictions

In most jurisdictions, an eviction may only take place under the auspices of a law enforcement officer or a representative of the law as defined by the jurisdiction's laws. It is illegal in most places for the landlord to attempt to force the tenant off the property themselves, or to force them to move in other ways, such as shutting off heat or utilities, or changing locks. A tenant facing such measures may sue the landlord or file a counterclaim against an existing eviction proceeding.

See also

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