Written by attorney Phillip Brooks Rose

The Eviction Process – Why you need an Eviction Lawyer

A general overview of the Unlawful Detainer/Eviction process: The information contained herein is general information only; is not legal advice; and should not be relied upon. If you have a pending legal matter you are advised to contact an Attorney in your particular jurisdiction for representation.

When a landlord is faced with their first eviction, they are often very surprised by what is required to retake possession of their property. Many would think that if a tenant is not paying rent or is breaching the terms of the lease that they would have the right to go and physically remove the tenant. This would be a disastrous mistake as there are severe penalties to resorting to this kind of “self help" in taking back possession of one’s property. What follows is a synopsis of the basic process that must be followed to lawfully take possession back if a tenant has failed to perform their obligations or if the landlord simply has decided that they want their property. Before we get there, it should be noted that depending on the particular jurisdiction, special rules may apply, and it is always the landlord’s responsibility to know those rules and to comply therewith.

Generally, the first step in evicting tenants is to serve the tenants with an appropriate notice letting them know that they are required to surrender possession of the property. If the reason for the eviction is that the tenants have failed to pay rent, the appropriate notice is likely a 3 day notice to pay rent or quit. If the tenant is in violation of the lease, the notice is likely a 3 day notice to perform covenants or quit. If there is no lease in effect and the landlord simply wants their property back without cause, the appropriate notice is likely a 30 or 60 day notice, each of which is dependent on the length of tenancy at the time the notice is served. A 60 day notice, for example, is generally required where the tenancy has existed for more than a year. A proper notice as well as proper service of the notice is critical as the law requires strict compliance with statutes in these regards in order to prevail in an unlawful detainer. An improper notice or improper service of the notice may end in the defendant/tenant prevailing in the lawsuit if challenged and so great care should be taken to make sure that the notice and service are done properly. If there is any doubt an attorney should be consulted to prepare and serve the notice and this part of the process is generally pretty affordable.

Once the notice has been served and the time the tenant has been given under the notice has expired with the tenant failing to perform, a lawsuit can then be prepared based upon a failure to comply with the notice. Again, it should be noted that there are particular rules for when a notice can “expire" and the time stated in the notice does not control, but instead statutes relating to expiration of notices must be followed. Once the lawsuit is prepared, it is filed with the court and then must be served upon the tenants. Sometimes tenants will attempt to evade service, for example, by not answering the door and sneaking in and out of the unit making it impossible to give them the legal documents. When this occurs a posting order may be obtained from the court. A posting order allows the lawsuit to be posted on the door and mailed to the defendants.

After the defendants/tenants have been served with the lawsuit, a clock starts ticking allowing them a certain amount of time to respond to the allegations made by the landlord. If the time runs out before a tenant files a response, the plaintiff/landlord is entitled to enter a default judgment in the case. Otherwise, if a response if filed, the landlord must take further action to move the case towards a judgment. Many different responses are available to the defendant including filing a “demurrer," a “motion to quash," or filing an answer. Regardless of what the defendant files the plaintiff/landlord must oppose any arguments made by the defendant/tenant by filing a response and appearing in court to argue against the defendant’s assertions. Eventually, the Plaintiff/landlord if successful will set the case for trial and will obtain a judgment in the case unless some other agreement can be made between the parties. Once a judgment is obtained either by default or otherwise, the judgment if filed with the court and is used to have the court issue Writs of possession.

Writs of possession are taken to the sheriff in the county in which the property sits and allow the Sheriff to finally deliver possession of the subject premises back to the owner/landlord/plaintiff. Once the sheriff obtains writs, they will post a notice to the tenant informing the tenant that they must vacate by a certain date. The final step of the process is for the owner to meet the sheriff at the property with a Locksmith when instructed by the sheriff to do so. The sheriff will require the tenants to exit the premises and the locksmith may change the locks, thereby restoring the property in the possession of the owner. Any property left by the tenants and any deposits held by the landlord will still have to be dealt with in accordance with the law, but now the owner has possession of their property back and can continue to move forward depending on the circumstances.

This introduction to the Unlawful Detainer illustrates that great attention to detail must be take to restore an owner to possession of their property and any failure to do so may result in significant delay. If you have trouble and would like assistance navigating the eviction process, you can count on PBR LEGAL to get you through this often stressful and difficult time as quickly as possible, so you can get back to enjoying your property investment.

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