| |
How Evictions Work
An
overview of the eviction process, including the types of termination notices
required for different situations, such as a tenant's failure to pay rent
From
the Nolo.com Landlord and Tenant Center
Eviction
-- that is, physically removing the tenant and his possessions from his
rented home or apartment -- can't be done legally until the landlord has
gone to court and proved that the tenant did something wrong that justifies
ending the tenancy.
A landlord
can't proceed with an eviction lawsuit, let alone get a judgment for possession
of the property or for unpaid rent, without terminating the tenancy first.
This usually means giving the tenant adequate written notice, in a specified
way and form. If the tenant doesn't move (or reform -- for example, by
paying the rent or finding a new home for the dog), the landlord can file
a lawsuit to evict. (This is sometimes called an unlawful detainer, or
UD lawsuit.)
State laws
set out very detailed requirements for landlords who want to end a tenancy.
Each state has its own procedures as to how termination notices and eviction
papers must be written and delivered ("served"). Different types of notices
are often required for different types of situations. Although terminology
varies somewhat from state to state, there are basically three types of
termination notices:
- Pay
Rent or Quit notices are typically used when the tenant has not
paid the rent. They give the tenant a few days (three to five in most
states) to pay or move out ("quit").
- Cure
or Quit notices are typically given after a violation of a term
or condition of the lease or rental agreement, such as a no pets clause
or the promise to refrain from making excessive noise. Usually, the
tenant has a set amount of time in which to correct, or "cure," the
violation. A tenant who fails to do so must move or face an eviction
lawsuit.
- Unconditional
Quit notices are the harshest of all. They order the tenant to
vacate the premises with no chance to pay the rent or correct the
lease or rental agreement violation. In most states, unconditional
quit notices are allowed only when the tenant has:
- repeatedly
violated a significant lease or rental agreement clause
- been
late with the rent on more than one occasion seriously damaged
the premises, or
- engaged
in serious illegal activity, such as drug dealing on the premises.
Many
states have all three types of notices on the books. But in some states,
landlords may use Unconditional Quit notices for transgressions (such
as late rent or violations of rental clauses) that merit Pay or Quit or
Cure or Quit notices in other, more tenant-friendly states. In these strict
states, landlords may extend second chances if they wish, but no law requires
them to do so.
Landlords
must follow state rules and procedures exactly. Otherwise, there will
be delays in the eviction process while the landlord re-serves his notices
or refiles his court papers. Failure to stick to the rules can sometimes
lead to the loss of the lawsuit, even if the tenant has bounced rent checks
from here to Mandalay.
Landlords
often chafe at the detailed rules that they must follow. There is a reason,
however, why most states have insisted on strict compliance. First of
all, an eviction case is, relatively speaking, a very fast legal procedure.
(How many other civil cases are over and done with after a few weeks?).
The price to pay for this streamlined treatment is unwavering adherence
to the rules. Secondly, what's at stake here -- a tenant's home -- is
arguably more important than a civil case concerning money or business.
Consequently, legislators have been extra careful to see to it that the
tenant gets notice and an opportunity to respond. Many rent control cities
go beyond state laws (which typically allow the termination of a month-to-month
tenant at the will of the landlord) and require the landlord to prove
a legally recognized reason, or just cause, for eviction of even month-to-month
tenants.
Even
if a landlord properly brings and conducts an eviction lawsuit for a valid
reason, there is no assurance of a quick victory. If the tenant decides
to mount a defense, it may add weeks -- even months -- to the process.
The
way that the landlord has conducted business with the tenant may also
affect the outcome: A tenant can point to a landlord's behavior, such
as retaliation, that will shift attention away from the tenant's wrongdoing
and diminish the landlord's chances of victory. Simply put, unless the
landlord thoroughly knows her legal rights and duties before going to
court, and unless she dots every "i" and crosses every "t," she may end
up on the losing side.
Finally,
if the landlord wins the eviction lawsuit, she can't just move the tenant
and his things out onto the sidewalk. Typically, she must give the judgment
to a local law enforcement officer, along with a fee which the tenant
has paid as part of the landlord's costs to bring suit. The sheriff or
marshal gives the tenant a notice telling him that he'll be back, sometimes
within just a few days, to physically remove him if he isn't gone.
Click
here for related information and products from Nolo.com
Copyright
© 1999-2000 Nolo.com
All Rights Reserved
A Message
to Our Readers:
This article
provides information and general advice about the law. But laws and procedures
change frequently, and they can be interpreted differently by different
people. For specific advice geared to your specific situation, consult
an expert. No book, software or other published material is a substitute
for personalized advice from a knowledgeable lawyer licensed to practice
law in your state. Neither Property Automation Software Corporation nor
Nolo shall be liable for any errors or inaccuracies in the content, or
for any actions taken in reliance on the content.
|
