An eviction, also called unlawful detainer or summary process, is the legal process and landlord takes to remove a tenant from the property. There are several steps a landlord must take to successfully evict a tenant. An landlord can only evict a tenant for nonpayment of rent or for violating the terms of a lease. There are several things to keep in mind during the eviction process.
A landlord may evict a tenant if the tenant:
- Fails to pay rent
- "Breaches" (breaks) the lease
- Commits "waste" (damages the place), or
- Has given the landlord any other "good cause" to evict
Laws on eviction proceedings vary widely by state and are known as summary dispossess or unlawful detainer lawsuits. Eviction laws are very detailed and must be followed exactly for the landlord to successfully evict. Most states have special restrictions on eviction that apply only to residential leases. These restrictions must be met very precisely before the landlord is permitted to evict a tenant.
Usually, the landlord must give the tenant a "notice to quit" before starting an eviction proceeding. If the rent remains unpaid (or other problems aren't solved), and the tenant remains after the expiration of the period provided in the notice to quit, the landlord may file a lawsuit. The landlord normally cannot remove a tenant at the expiration of the notice period. A lawsuit begins when the tenant is served with the legal papers normally referred to a summon or a complaint. A hearing is usually held within a very short time (sometimes as soon as 14 days after the summons and complaint are served).
At the eviction hearing, the tenant may present any appropriate defences, such as:
- A mistake in the accounting of the rent
- The right to deduct rent because of the condition of the premises.
- In some states, that the tenant has "cured" a monetary default by paying the landlord all his damages because of the tenant's failure to pay rent.
The tenant may also provide any evidence that the landlord wants to evict the tenant in retaliation for some action of the tenant, such as:
- Asking for repairs
- Complaining regarding housing discrimination
- Organizing other tenants against the landlord
- Reporting housing code violations or asking for code inspections
If the court rules in favor of the landlord, the tenant is usually given a short period of time to move out before the landlord can begin proceedings to forcibly eject the tenant. If the tenant doesn't voluntarily leave after the eviction lawsuit, the landlord can ask law enforcement officers to assist the landlord in completing the eviction process. The law enforcement officer will typically give the tenant official notice that police will be arriving at a certain time on a certain date to physically remove the tenant and their possessions from the premises.
The landlord normally must not engage in any acts of self-help, such as changing the locks, removing the tenant's belongings, turning off utilities or attempting to forcibly remove the tenant. Self-help is flatly outlawed, and in most states is a crime.
Different Types of Eviction Notices
There are generally three kinds of eviction notices that a landlord must use depending on the particular details of the situation with a problem tenant.
Notice to Pay Rent or Quit:
As the name suggests, this notice is used when a tenant has not paid the rent. It notifies the tenant that he or she must either pay the rent within a specified number of days (usually 3 or 5 days) or vacate the rental unit. Most problems end here - if the tenant cannot pay, he or she will leave. If the tenant does neither, then you can start the eviction process. If you accept a rental payment from the tenant after he or she has been served with this notice, the termination notice is cancelled for that rental period.
Notice to Cure or Quit:
If the problem is not the tenant's failure to pay rent but a violation of a term of the lease or rental agreement, you must send the tenant this notice, which gives him or her a chance to remedy the situation. Under the laws of most states, the tenant has a specified amount of time in which to correct or cure the violation. If the tenant fails to rectify the situation, you may begin eviction proceedings.
Unconditional Quit Notice:
This notice is the harshest of all termination notices, and, therefore, can only be used in a limited number of situations, which vary from state to state. The notice orders the tenant to vacate the rental unit within the statutory period (usually 5 to 10 days) and does not provide a grace period for the tenant to pay back rent or cure the violation of the lease or rental agreement.
Under the law in most states, these notices are to be used only when the tenant has:
- Repeatedly violated a significant lease or rental agreement clause
- Been late with the rent on numerous occasions
- Seriously damaged the premises
- Violated the lease or rental agreement in such a way that the violation cannot be corrected
- Engaged in serious illegal activity on the premises
Remember: If the tenant fails to vacate the premises within the statutory time period, you must still bring eviction proceedings against him or her.