How to Navigate the Real Estate Eviction Process

How do you feel about a criminal conviction on your record? Defending against a civil suit for intentional infliction of emotional damage? They don’t sound too bad? Well, how about a fistfight with a tenant on the front lawn of your rental property?

If you’d prefer to avoid these scenarios, it might be a good idea to understand the process required to lawfully evict a tenant. While the details of the eviction process vary from state to state, the general principles discussed here are almost universal. We’ll take a look at:

• Why a landlord should avoid “self-help” evictions
• The eviction process, from soup to nuts, including:
  • Termination of tenancy notices
  • Filing the eviction suit and serving a summons
  • A tenant’s answer and possible defenses
  • Trial and judgment for possession and/or damages
  • Sheriff’s eviction and dealing with property left behind
• Differences between residential and commercial evictions

Can’t I Just Change the Locks?

When a tenant isn’t playing by the rules, when they’re behind in their rent payments, consistently violating lease obligations, it can be extremely frustrating for a landlord. For many there is a desire to just take care of the problem themselves, and figure out a way to get the tenant to leave.

These so-called “self-help” remedies (evicting without using the proper eviction process) include such things as:

• Changing the property’s locks
• Turning off utilities to the premises
• Harassing and threatening the tenant
• Removing the tenant’s personal property

These can seem attractive in the short term because they seem quicker and less expensive than a court action. However, because they’re illegal, and often dangerous, in the long-run “self-help” actions can end up being far more time-consuming and costly than simply following the statutory procedure.

Almost every state prohibits a landlord from using self-help methods, and may impose penalties for such, including allowing tenants to remain in possession of the rental property. Further, if a landlord uses these it can be sued for, among other things, trespass, harassment, wrongful eviction, invasion of privacy and intentional infliction of emotional distress. These suits can seek damages caused by the landlord’s unlawful behavior, including not only actual damages (e.g., the cost of a hotel room while the tenant was dispossessed, food gone bad when electricity was turned off, replacing personal property “lost” when the landlord entered the property, etc.) but also punitive damages.

Fighting these types of suits could take years and tens of thousands of dollars. Losing them could be even more costly. The alternative, however, following the statutory eviction procedure, virtually eliminates these hazards.

That being said, let’s take a look at the process.

Eviction Process

Let’s take a look at the eviction process, step by step.

Step 1: Notice of Termination of Tenancy

Before beginning down the path of an eviction, one must understand that because removing a person from their home is a significant event, the courts will require strict compliance with their eviction laws. This means meet the notice deadlines. Serve the notices in their proper fashion. Name the proper party, etc. If a landlord fails to follow the rules, even the little ones, their action will be delayed.

The first step in the process is the landlord serving its tenant notice that the tenancy is being terminated. The method of service (i.e., its delivery) will be set forth in the state laws, but generally involves methods like personal service to the tenant (hand-delivery), leaving notice at the property with a person of at least a minimum age, or being sent by certified mail to the property.

Termination Notices for Cause

The notice explains why the landlord is terminating the tenancy, and will fall into one of two categories: (1) termination for cause or (2) termination without cause. Termination for cause means the tenant has failed to meet one or more of its obligations under the lease. The most common failure is not paying rent. Based on the type of default, there are three types of termination notices for cause: (a) pay rent or quit, (b) cure or quit, and (c) unconditional quit.

Pay rent or quit notices notify the tenant they owe rent, how much they owe (including penalties), and when they must make full payment. They have the choice of either paying this amount by the date specified or leave (“quit”) the premises. If they pay, the landlord will stop pursuing eviction. If they do neither, the landlord can then proceed with the eviction process. However, not all states require a pay rent or quit notice. For example, in New Jersey, a landlord can file an eviction complaint for failure to pay rent without first giving his tenant any notice.

Cure or quit notices tell the tenant they have breached one or more of their duties under the lease, and gives them an opportunity to fix (“cure”) the breach. For example, if the lease limited the number of occupants to two, and there were four residents, the tenant could cure by having two people move out. If the tenant doesn’t timely cure, and doesn’t quit, the landlord can proceed with the eviction process. A cure or quit notice should be specific about the breach, and how it can be cured, so the tenant has an opportunity to avoid eviction.

The third “for cause” termination notice, an unconditional quit notice, notifies the tenant that is in breach of one or more lease terms, but has no right to cure. They simply must quit the property by a certain date or an eviction action will ensue. The general thought is that because this is a harsh outcome it should only apply to serious transgressions such as repeatedly failing to pay rent on time, violating significant lease terms, or engaging in illegal activity on the premises. However, not all states agree, and in some cases an unconditional quit notice can be used where other states would require a pay rent or cure notice.

Termination Notices Without Cause

In some cases a landlord may have the right to terminate a lease even where the tenant has done nothing wrong. A typical example is a month-to-month lease, where termination can occur for no reason so long as the tenant is given a 30-day notice. Of course, each state has its own peculiarities. For example, in New Jersey, if a tenant lives in a rental property with three or fewer apartments, and the landlord occupies one of the units, then the landlord doesn’t have to establish any cause for eviction.

Special rules may also apply to publicly or federally-subsidized housing such as Section 8, HUD Housing or the Low-Income Housing Tax Credit (LIHTC) program. For example, landlords cannot evict tenants in LIHTC units without giving notice of specific “good cause” reasons. Good cause is determined on a case-by-case basis, though it may include serious or repeated violations of the lease, crime or drug related activity, or failure to vacate following a condition that leaves the unit uninhabitable.

Step 2: File Eviction Action

If the tenant was unresponsive to the termination notice, a landlord may file a “complaint” for eviction with the court. Generally this suit is referred to as an unlawful detainer action. The complaint is the pleading that starts the eviction suit and notifies the tenant of (1) the basis for the court’s jurisdiction, (2) a statement of the eviction claim, (3) the relief being sought by the landlord (e.g., rent, possession, damages), (4) why the landlord is entitled to this relief, and (5) a demand for judgment.

The landlord must serve (in compliance with the state’s laws as to who can serve, and how they must serve) the tenant with a copy of the complaint and a summons. The summons is the official notice that the eviction action has been filed, and generally includes the case number, which court will hear the case, when the tenant must respond to the complaint, and the name of the landlord’s attorney.

Step 3: Tenant Answer and Defenses

The tenant may file an “answer” to the allegations in landlord’s complaint, denying the complaint’s claims, and asserting any defenses it has to the action. The answer must be filed within the time described in the summons.

A common response to a complaint is that the landlord failed to follow the procedural eviction rules in some fashion, e.g., termination notice was improperly served, the complaint named the wrong party, etc. While such responses are easily cured, each failure can add weeks to the eviction process. These responses are typically delay tactics more than defenses, but can be leveraged to negotiate a settlement with a landlord who would like to regain possession of his property sooner rather than later.

Other common defenses include that (1) rent was paid in full prior to filing of suit, (2) landlord failed to maintain property in a safe and habitable state, or failed to comply with all building codes, (3) the eviction is discriminatorily based on race, religion, gender, national origin, familial status or disability, (4) the landlord used impermissible self-help actions, (5) the eviction is retaliatory, and (6) the tenant used rent to offset the cost of repairs it made when the landlord refused to do so itself.

One interesting tenant’s defense is the claim of a “constructive eviction.” This occurs where a tenant alleges that landlord’s failure to take some act (e.g., repair a leaky roof) substantially interferes with or permanently deprives a tenant from using the property. If successful on this claim, a tenant doesn’t have to pay for rent during the period of interference, though most jurisdictions will require the tenant to vacate the premises (you can’t stay if you just proved the property is uninhabitable!).

Step 4: Trial and Judgment

The court will set a date for trial following receipt of the tenant’s answer. If the tenant failed to answer, the court will award a default judgment and the relief landlord sought in its complaint; typically a judgment for possession and/or damages.

One note to both parties in an unlawful detainer action (well, in any action): Bring evidence to support your claim. For some reason parties to eviction actions seem to believe the other side won’t show, or if they do, they won’t be prepared, and the judge will automatically grant them judgment. Avoid this mindset. Bring evidence the tenant didn’t pay rent (was there correspondence concerning missed payments?). Bring proof of damaged property (are there pictures of the unhinged front door?). Bring the lease, the termination notice, complaints from other tenants. Bring everything.

Following consideration of the evidence, if the landlord prevails it will be awarded a judgment for possession of the property, unpaid rent, and other expenses provided for under the lease.

Step 5: Eviction by Sheriff and Removal of Tenant Property

Once a judgment has been obtained, the landlord provides a copy of it along with a fee to the appointed local law enforcement officer (usually a sheriff). The sheriff posts notice of the date the eviction will occur (as always, this posting must be done in compliance with state law), and if the tenant has not vacated the property before then, the sheriff will remove them. Because law enforcement officers don’t get paid to move couches, typically the landlord will have to provide labor to remove the tenant’s personal property.

While it should be clear from everything we’ve discussed to this point, if the law says that only the sheriff can evict, then the landlord cannot remove the tenant itself, judgment or not. Usually this is express under state law. For example, in New Jersey, the only way a landlord can evict a tenant is if a special court officer with a legal court order, a warrant for removal, comes out himself and does the eviction. Additionally, as noted earlier, self-help actions can be dangerous. Given that evictions can become emotionally charged events, it is in all parties’ best interests to leave this last step to the trained law-enforcement professionals.

Once the tenant’s personal property has been removed, state law will dictate how the landlord must handle it. Some states require the landlord to make a good-faith effort to contact the tenant regarding the property (e.g., mail notice to tenant’s last known address). Others provide the landlord can dispose of the property if the tenant has abandoned the property. Although what constitutes “abandoned” varies by state (many agree that if tenant has not responded to a notice within 30 days, the property is considered abandoned), a general test is whether the tenant clearly has no intent to return to the premises for their property.

Other states don’t require any notice at all. For example, in Georgia if a landlord obtains judgment it is issued a “writ of possession.” The writ is effective seven days after issuance, and after this seven-day period the landlord can dispose of any tenant property left on the premises. He need not notify the tenant. He need not store the property. Seven days in Georgia. Period.

Other states can get a little more complicated, for example, requiring a landlord not only to store property and notify the tenant of the same, but then to dispose or auction off property through public sale (after public notice is made) depending on the value of the property.

Differences Between Commercial and Residential Evictions

Generally state laws provide less protection to tenants in a commercial setting than in a residential one. Not only are people’s homes not in play in a commercial lease, but the courts expect that two commercial parties are less likely to be in a position of unequal bargaining power. They can look out for themselves.

Because of this, some states allow a commercial lease to modify eviction procedures. For example, a lease may include a waiver of the right to a jury. Or, where a cure period under state law is three days, the commercial lease may give a tenant five business days to cure.

Some other common differences include:

• Filing fees: Court fees may be higher for commercial evictions.
• Sheriff bond: Residential evictions generally only require a fee to be paid to the sheriff for the eviction, but commercial evictions may required a landlord to also post a sheriff bond.
• Self-help: Some states allow self-help in the commercial realm. For example, in Arizona a landlord can lock out a tenant without going to court first. The tenant then has to bring suit if it believes it should regain possession.
• Landlord duty to maintain property: A landlord generally has the obligation to maintain a residential property in safe and habitable condition. Where it fails to do so, a tenant may have the right to withhold rent until the landlord complies. No similar obligation exists in commercial tenancies. A landlord must only provide what he agreed to under the lease. Further, even if the landlord fails to maintain the property as he said he would, the lease can still provide that the tenant may be evicted if it doesn’t continue to pay rent.
• Where eviction action is filed: Residential actions may be filed in different courts than commercial evictions. For example, in Massachusetts residential actions can be filed in the local housing court, the Boston Municipal Court, appropriate district court, or in certain circumstances in Superior Court. But commercial evictions don’t have access to the housing court.

Conclusion

While the intricacies vary state by state, evictions follow a similar path no matter where the property is: (1) notice of termination of tenancy, (2) file a complaint and serve tenant with summons and complaint, (3) tenant files answer with defenses, if any, (4) trial and judgment, and (5) notice and eviction by sheriff.

Of course, given that the courts, especially in residential evictions, require strict compliance with the intricacies, that failure to comply can add months, dollars and headaches to an eviction action, and that this discussion is only for informational purposes (and not legal advice), if you have any specific eviction issues, please contact a licensed real estate attorney!