This article will provide you with information about eviction (also known as "forcible entry and detainer"), which is a court action a landlord can use to remove a tenant from an apartment or house. A tenant can be evicted for a breach of their lease such as not paying rent, significantly violating a term of a lease or for staying in a home after their lease expires.
What are the reasons a tenant can be evicted?The most common reasons for eviction of a tenant are:
- Failure to pay the rent
- A breach or violation of an important lease provision such as having a cat when no pets are allowed
- Causing serious damage to the leased property (also known as "waste")
- Staying in the home after the expiration of the lease (also known as a "holdover")
How does the eviction process work?Eviction is a legal process. Since the removal of a person from the place they call home is a very serious matter, every state has very detailed eviction laws that describe specifically how a landlord can evict a tenant. Given the gravity of the situation, a landlord must be careful to follow the laws governing the eviction process. There are serious consequences for not doing following the eviction process such as being required to pay a wronged tenant money damages. Whether you are a landlord or a tenant, you should make sure to research the landlord-tenant laws in your state and county. Generally, the eviction process requires the following:
- Notice to the tenant of the eviction
- Filing a lawsuit to evict the tenant
- Obtaining a judgment and order for eviction of a tenant
- Enforcing the order of eviction against the tenant
- Eviction Notices
In a majority of states, a notice to the tenant must be given before a landlord can begin the eviction process. This is called a "notice of termination" which is a warning to the tenant that their lease has been terminated and that the tenant must leave (or "vacate") the place they have rented (also known as the "premises.") The most common notices of termination include:
Notice to Pay Rent or QuitThis notice is commonly known as a "three day notice" where a tenant is required to pay past due rent (usually within three days) or leave ("quit") the premises
Notice to VacateThis notice typically provides a tenant 30 days or 60 days prior notice to leave the premises, which also terminates any month to month tenancy
Notice to Cure or QuitThis notice requires a tenant to fix or "cure" a violation or breach of the lease (usually within 20 to 30 days) or leave the premises
Filing a lawsuit to evict a tenantIf a tenant does not remedy the problem that is contained within the notice, such as paying outstanding rent, leaving the premises or curing another problem such as removing a pet, a landlord may commence file a lawsuit for eviction of the tenant. The landlord files a complaint with a court (usually there are special landlord-tenant courts) which request the court find for the landlord to evict a tenant. The tenant is then served with a copy of the summons and complaint and a summons, usually via a process server, which demands that the tenant appear in court for a hearing on the matter.
Landlord tenant court works very quickly. A hearing is usually conducted within a short period of time, which can be just two to four weeks after a summons and complaint are served. If the tenant defaults (doesn't appear at the hearing) or doesn't file a written response or "answer" to the complaint, a judge will automatically enter a judgment for eviction on behalf of the landlord. If the tenant contests the eviction by filing an answer and/or appearing at the hearing, the landlord is required to provide additional supporting evidence for the eviction.
Common tenant defenses against eviction
Tenant defenses against eviction by the landlordA tenant should be aware of the tenant's rights and remedies under the lease agreement. The most frequent defenses that tenants raise against an eviction are usually:
- The landlord is mistaken as to the amount of rent owed
- The landlord has breached its requirements under the lease because the landlord wants the tenant to move out, for example, to sell the residence to someone else and not be subject to the lease
- The landlord is retaliating against the tenant's rightful actions such as having prior demanded repairs, filing a complaint against the landlord (such as for discrimination or violation of law) or joining a tenants' association
- The tenant had a right to deduct rent or "abate" the rent because of a failure of the landlord to provide essential requirements such as heat, hot water, etc.
The tenant didn't pay rent because the premises were not livable or habitable (known as "constructive eviction")
A tenant must show some proof that the conditions were serious enough to demand a "refund" of the rent due due to the landlord's failure to provide what was promised under the lease. Proof includes notice provided to the landlord complaining about a serious condition.
What is constructive eviction?In virtually all states, a landlord must keep the premises safe and habitable. If the conditions are serious enough to make the tenant leaving the premises (for example, excess mold made breathing unsafe), this would likely be enough to establish a case of "constructive eviction." Essentially, the tenant claims that the landlord evicted the tenant since the conditions were so poor that the tenant couldn't stay on the premises. A landlord might be required to pay the tenant damages for constructive eviction. In the majority of states, the tenant may withhold rent and is not required to pay the full amount of rent that was due under the lease.
Enforcement of an eviction orderAfter a trial, if the court rules in favor of the landlord, the tenant is given a short time to leave the premises. If the tenant still refuses to leave, the landlord must make a request to special law enforcement officers (the local sheriff or marshall) to forcibly remove the tenant from the premises. A landlord may not resort to "self-help" and remove the tenant by force. A landlord must obtain an order for eviction and obtain the assistance of the sheriff or marshall.
Prohibited "self-help" eviction actions by a landlordThe following are the most common types of self-help actions by a landlord that are prohibited:
- Changing the door locks ("lock out" or "lockout")
- Turning off power, heat and water ("freeze out")
- Forcibly removing a tenant's belongings from the premises
- While the tenant may still be required to find another place to live, the landlord may be liable for money damages to the tenant if resorting to prohibited self-help measures.
Speaking to a landlord-tenant attorneyThe landlord-tenant laws in each state and county are different regarding eviction, even though generally they are the same. Once the eviction process has begun, a tenant may not be able to stop the process even by curing it. If you wish to remedy the situation, you may want to speak to a landlord-tenant attorney who is familiar with the laws and procedures regarding landlord-tenant law in your area. The custom and manner of the local landlord-tenant court may be a significant factor in your decision making process.
- Landlord Tenant Law:
Eviction The Eviction Process Explained for Landlords & Tenants
By Michael M. Wechsler |
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