Property Management, Tenant Selection, Real Estate News & Tips

What Is a Legal Eviction Process?

By on June 23, 2016 in Education with 26 Comments

legal eviction processIrresponsible tenants are not only stressful to manage but they can put a serious dent in your cash flow.  Dealing with a bad tenant may cause a landlord to immediately assume he can move forward with an eviction. Evictions, however, must be handled delicately or you could be forced to allow the tenant to keep living at your property. Or worse, you could end up owing your rule breaking tenant money!

It is important to avoid harassing or threatening your tenants at all times. If you have an irresponsible, rule-breaking tenant you cannot do the following things in the hopes they will move:

  • Change the locks
  • Harass or threaten the tenant
  • Shut off Utilities
  • Hire moving service to remove all tenant belongings.

Additionally, a landlord cannot simply file an eviction notice.  State and local laws establish detailed requirements for legal eviction procedures.  Basically, legal reason for termination has to be identified and legal notices have to be sent before you can move forward with an eviction.

This guide provides general guidelines for a standard eviction process.  It is very important that you check with your state and local laws about legal eviction practices and speak with an attorney.

In order to move forward with an eviction, you must first terminate a lease agreement or tenancy. This usually has to be done in writing, in a specified way or form. Once you have given proper notice, if a tenant does not fix the lease violation or move out, you can then file a lawsuit to evict a tenant.

What is an eviction?

An eviction is a lawsuit that is filed against a tenant, sometimes called an unlawful detainer or UD lawsuit.  In order for a landlord to win an eviction case that forces a tenant to be legally removed from a dwelling, the landlord must prove that a tenant did something wrong that justifies ending the tenancy. Additionally, if the pre-eviction procedures were not followed exactly, according to state requirements, the eviction could be ruled in favor of the tenant, costing the landlord extra money.

What are pre-eviction procedures?

In order to move forward with an eviction, you must first terminate a lease agreement or tenancy. This usually has to be done in writing, in a specified way or form.  According to Nolo, there are 3 basic types of termination notices that a landlord may issue to a tenant that has violated a rental lease agreement.  A tenant may be forced to end their tenancy for lease violations referred to as termination for cause.

Notice of Termination for Cause

  • Pay Rent or Quit – This official notice is typically delivered to tenants who have not paid their rent as outlined in the lease agreement. The notice will outline the deadline for payment, the amount of rent and late fees that are now due, and the instructions for payment.  The notice usually gives tenants 3-5 days to pay rent or move out (“quit”).  If the tenant does neither in the designated timeline, you can move forward with filing an eviction.
  • Cure or Quit Notice – This notice is typically sent to tenants after they have violated a lease term, like having a pet in a pet-free property or smoking in a smoke-free area. Like Pay Rent or Quit, the Cure or Quit Notice, usually gives a tenant set amount of time to fix the issue (“cure”) or move out. Depending on your state, cure or quit notices can involve a 3-30 day fixing period. – For example, Virginia requires notices allow a tenant 21 Days to cure or 30 days to move.
  • Unconditional Quit Notices – In some cases, a landlord can send a notice to a tenant that requires them to move without a chance to fix the situation. According to Nolo, only a few states allow landlords to send unconditional quit notices for reasons like:
    • Repeatedly violating a significant lease clause
    • Seriously damaging the property
    • Engaging in illegal activity, such as dealing drugs on the premises

Notice for Termination Without Cause

Landlords may usually use a 30-Day, 60-Day or 90-Day Notice to Vacate to end a month-to-month tenancy when the tenant has not done anything wrong.

However, a city that allows rent control may require a landlord to prove a significant lease violation before terminating a rent control tenant.  These laws are known as “just cause eviction protection.” The San Francisco Tenants Union outlines some Just Cause Eviction information for legal reasons to terminate the tenancy in a rent control unit.

Eviction Lawsuit

Once you have properly notified a tenant with a termination notice, if they do not fix the issue or move within the timeline outlined in the notice, you can move forward with filing an eviction with the court.

Once the landlord submits the required paperwork to their local court, the court will process it and schedule a hearing date. The time between filing in court to getting a court date varies greatly between different court jurisdictions and can be between a couple weeks to a few months. It is critical that you file your complaint as soon as the notice period expires and to make sure all procedures are followed to avoid unnecessary delays.

The Next Steps

After filing an eviction lawsuit, the landlord and tenant will be given a court date. If the judge rules in the favor the landlord, he will issue a Writ of Possession. A “Writ of Possession” is a document distributed by the court when a judge rules to return possession of the rental property back to the landlord.

ezLandlordForms offers the following information regarding “Writ of Possession”

The landlord should make sure there are no specific requirements to obtain or serve a Writ of Possession. Most often, a sheriff or constable will serve the tenant with the Writ of Possession, informing them that they are to leave the premises by a certain date and time or they will be forcibly removed. Writs of Possession are governed by state and local laws, which differ from jurisdiction to jurisdiction.

On eviction day, in the best circumstances, you tenant will have already move out. In the case they have not, a sheriff or other authorized person will arrive to escort the evicted tenant off the property. Once a tenant is legally removed from the property, the landlord should immediately change the locks and follow state laws for removing the tenant’s abandoned property.  

Pro Tips: Make sure that you are familiar with the language of the lease being used before you attempt to serve the tenant with a pre-evicition notice. Remember if you attempt a DIY-eviction, like changing the locks, you may find yourself on the other end of a lawsuit in court.

It is equally important to remember that all landlords must adhere to state and local laws and forms, and follow the timeline exactly, since evictions can be a long and expensive process. A local attorney familiar with landlord-tenant laws in your state will be an important part of a successful eviction.

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About the Author

About the Author: Kaycee (Wegener) Miller manages marketing and media relations for Rentec Direct, bringing a unique perspective to the world of property management and proudly shares industry news, products, and trends within the community. .


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There Are 26 Brilliant Comments

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  1. Thank you for sharing these sites, just want to ask if you know sites that accept Great post!!!

    • Mike says:

      I own my landlord about $8000.00 in rent & legal fees they always file one month rent and future rent I pay this each time although I’m still behind the landlord will try and have me to make another payment when another eviction is schedule without a court order can they do this?

      • It might be time to speak with an attorney who specializes in helping renters with eviction cases. He will be able to provide you with the most appropriate advice.

  2. Danielle Hewitt says:

    Hey, I’m in Oregon and am curious when you receive a 30 day notice no cause does it have to be the date from which you receive it? Because I received one and I wasn’t even home for 9 days before I received. It was just thrown under my door

    • I believe that the notice starts on the date of delivery, it is not your landlord’s fault that you were out of town when the notice was delivered. A nice landlord might give you a little bit of leeway if you explain this to them. But I don’t think they are legally required to.

  3. Danielle Hewitt says:

    Oh I’m sorry I had to add more. It also states that I cannot any longer have my dog on the property. He’s been with me ever since I moved in. Are they allowed to do this? She’s saying she has allergies but the minute I had my dog stay with friends she got a cat that’s indoor.

    • Is there a section of the lease that says you are allowed to have a pet? Your landlord cannot change lease terms, mid-term. They would have to have you sign a pet addendum that changes the conditions of the lease before making you get rid of a pet.

  4. my tenant had been repeatedly entertaining visitors until late hours and disturbing the sleep of other occupants who are going to work early a result tenant and other occupant in a room had a fight and cursing each other and resulted in a restraining order filed by the other
    occupant. Do I have the right to give unconditional 3 day quit .
    this is a room rental only and no lease agreement except a written agreement

    • Check you state laws about providing a 3-day notice to cure or quit for dangerous tenant behavior. Typically, a tenant is required to be safe towards the property and other occupants as a state law tenant responsibility.

  5. Ty says:

    My name was added to the lease, but the landlord only served eviction papers on my friend although we were both responsible for rent. The courts clerk office said the landlord did not list my name and would need to file against me for the property. Is that so?

  6. Arnestris Spivey Niece says:

    Can I get evicted for not signing my lease for incomplete work orders which is not being repaired but closed cas work was never done by maintenance?

  7. sandra cooper says:

    Property was quick deeded to me and I want to move in the property but there are tenets there now. How do I inform them I own the property and they have to move within 30 days of my notice and any damage to the property will be their cost?

    • You need to follow your state’s laws about a no-cause eviction. Some state’s allow 30 days, other states require 90-days. It just depends on where you live. If the tenants are on a term lease, you must finish the length of the lease.

  8. Sherika Aych says:

    I was never even a 3 day notice I was in a car accident on April 13 my mom called the landlord and told her what was going on and that evening I had a voice mail stating if I didn’t make a payment by that Sunday that I was going to be evicted so I was going to make the payment but after I found out that I was going to be out of work I didn’t so she was demanding her are get out so she filed the eviction notice I couldn’t go to court so 3 days later she text and told I need to move out within 24 hours like I said I never received no other type of notice

    • I think your landlord still needs to give you official notice, depending on your state laws. I don’t think a judge would grant an eviction if the landlord didn’t have proof that official notice to cure or quit was given. Keep in mind, that your landlord is well within her rights to move forward with the eviction process if you did not pay rent.

  9. Ticuha says:

    Can I get evicted
    for not paying the rest of the move in deposit ?

  10. Katelynn Buneta says:

    Can my lien holder evict me for not paying my rent by the first when our lease doesnt specify when i have to pay my payment each month

  11. Jewan basdeo says:

    I have been living in this apartment for over five years with no legal lease just a verbal agreement I have been laying my rent with personal check and the is no payment in arrears. I recently receive a notice to non renew my lease which I never had in the first place my landlord given me 60 day to evict the property claiming she need to do repairs.can she legally do that?

    • Even if you don’t have a written lease, your landlord must follow your state’s laws for providing notice to vacate and end the tenancy. It doesn’t sound like you are getting evicted, just that your landlord is deciding not to rent to you by certain date. This is sometimes referred to as a “no-cause eviction” but remember it does NOT mean you are getting evicted. I would check your state and local laws about no-cause evictions, sometimes a landlord must give you additional time to move out or other conditions might apply. Good luck!

  12. Can a complaint joint action forcible detainer-rent/damage be corrected after receiving a court day? We notice some mistakes shortly after we got home from filing an the eviction.

  13. Kathryn Ford-Olson says:

    My daughter has lived with my husband and me for years. We never had a formal agreement. We do not get along frequently. She is 40, my husband is 70 and I am 68. I want a peaceful abode. This week, during a discussion she shoved my laptop into me, closing the top on my tummy. I cannot accept this aggressive behavior. How do I make her move out. She has recently been paying rent.

    • I am sorry to hear about your experience, that must be really tough to deal with. If your daughter has been paying rent, then you must go through an official eviction process per your state laws, even if she is family. I would also file a police report about any violence, this will help you with your eviction hearing. Good luck!

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