Also known as a writ of replevin, a writ of possession is a court order that allows you to take possession of a piece of real estate or personal property. The courts may issue these writs in several situations, the most common of which is an eviction proceeding.
When the court issues a writ of possession, it authorizes one party to recover possession of a piece of disputed property. Typically, the court issues these writs after a party has won a judgment against the other in a legal proceeding. The writ enforces the judgment issued against the other party.
A party may also seek a possession writ to recover real estate or loaned personal property. To do so, the parties seeking the writ must have won a judgment entitling them to possession. A writ of possession is most commonly issued after an eviction hearing or debt collection case.
In some states, plaintiffs can ask the court for a writ to take possession of some tangible personal property before the case goes to trial. This type of writ is known as a pre-judgment writ of possession. In this scenario, a plaintiff must have the right to take immediate possession of the property. The defendant must also be wrongfully withholding the property from the plaintiff.
Landlords often use writs of possession to legally evict someone. For example, when a tenant fails to pay rent despite multiple notices from the landlord and refuses to vacate the premises. The landlord will need to pursue an eviction action. In court, the landlord shows the judge that a tenant is unlawfully continuing to live in the rental property.
Once the court issues a judgment in the landlord’s favor, the sheriff can post a writ of possession on the tenant’s door and usually allows 24 hours before forcible removal.
When creditors wish to recover collateral for an outstanding debt, they may need to first receive a writ of possession. For instance, say a person bought a car with a secured loan from a local bank. The person then defaults on the payments, and the creditor (the bank, in this case) goes to court to get a judgment against the debtor. The debtor then has a certain amount of time to either pay the balance of the loan or return the car.
If the debtor doesn’t do either, the next step for the bank is asking the court to issue a writ of possession. If the court grants the writ, the sheriff can then seize the car.
Local and state law will govern the specifics of getting a writ of possession, but the general process is similar. In most cases, securing a writ starts by suing the other party.
Depending on the nature of the lawsuit, the party bringing the lawsuit may have to wait for a final judgment before asking the court for a writ. For example, landlords cannot request a writ of possession for a rental property until they receive a final judgment of eviction.
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