Property Management, Tenant Selection, Real Estate News & Tips

What Is a Legal Eviction Process

By on June 23, 2016 in Education with 2 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 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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