Guide to Understanding
The Eviction Process
Colloquially, the word eviction refers to the removal of a tenant from rental property by the landlord. In legal terms, it is also known as unlawful detainer, summary possession, forcible detainer, ejectment, or repossession, depending on the laws of the jurisdiction. Nevertheless, due to this colloquialism, the process is routinely referred to as eviction 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 born 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
Remember that the procedures for evictions are established by State law and 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.
There are two types of evictions, termination for cause and termination without cause.
If a tenancy is being terminated for cause, the landlord must give the tenant notice, commonly called a notice to quit or notice to vacate. The tenant has a short amount of time (usually 3 to 5 days) to correct the error. The most commonly causes are nonpayment of rent or a breach of the lease (such as keeping a pet when pets are not allowed). In some cases, a landlord may post an unconditional quit notice, meaning the tenant can do nothing to correct the error. These are reserved for extreme cases such as failure to pay rent for multiple months or the apartment being used for criminal activity.
A tenancy can be terminated without cause if there is no lease 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 forced as a result of 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 procedings. But in the case of unpaid rent, eviction may occur within a few weeks 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 most juridictions, a tenant who has failed to pay rent is granted a right to redemption, unless otherwise specified in court documents. Right to Redemption means that the tenant may cancel the eviction and remain in the rented property by payment the full amount of rent due plus all other fees owed to the landlord allowable under the law.
If the tenant continually fails to pays rent, resulting in the repeated filing of complaints by the landlord, the landlord may file for no right to redemption. This means that following an eviction trial, the case against the tenant will stand, and the tenant cannot remain in the property by payment of rent. The number of trials required before a landlord can make such a filing 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.
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.