Real Estate Law

Tenant Evictions

            Tenant evictions are an undesirable, but inevitable part of rental property ownership for most landlords.  Even with the best tenant screening processes, background checks and other good business practices to achieve the best possible tenants, sometimes eviction is necessary. The legal process for eviction and the terms by which it is referred to differ depending on the jurisdiction where rental property is located.  In some jurisdictions, the legal action filed in order to evict a tenant is referred to as a forcible entry and detainer action.  It is important for all landlords to have a basic understanding of the reasons that tenants may be evicted from a rental property, how notice must be given to a tenant and if applicable, the ways in which a tenant may avoid eviction by correcting the issue that is the subject of the eviction action. There are also important differences in state and local laws in terms of the eviction process and therefore, landlords need to familiarize themselves with the laws applicable to their particular property.  This article is designed to provide general background as to the basic concepts that are part of the eviction process and it does not provide legal advice specific to any situation. 

Grounds for Eviction:

The reason(s) that a tenant may legally be subject to eviction are typically based upon a combination of what the applicable state or local law provides, and the terms and conditions contained in the tenant’s lease or rental agreement.

Some of the common reasons that a tenant may be subject to eviction include the following:

*Non-payment of rent

*Violating either the terms and conditions of the lease or applicable rules such as noise violations and similar items.

*Creating a clear and present danger or similar circumstance that places the health and safety of the tenant and/or other tenants at unreasonable risk.

*Holding over after the end of a lease term.

The most common reason for eviction is typically non-payment of rent.  However, the other examples given above are also among the usual reasons that landlords seek to regain legal possession of their properties.

A. Notice Requirements:

Most jurisdictions require that a specific type of written notice must be given to tenants prior to beginning a legal action for eviction. In many states, the preliminary notice that is required is what is known as the Notice to Quit.  When used in situations where a tenant has not paid the rent, the notice usually gives the tenant notification of the amount of rent that is past due and then provides a time period within which the rent must be paid in order to avoid eviction.   The amount of time that tenants have to cure the unpaid rent is normally very short and may be as short as three days.  If the tenant does not cure the unpaid rent during the allowed time, then the landlord is generally free to file a legal action to pursue eviction of the tenant.  Generally, compliance with the notice requirements, including the information that is required to be in the notice and the manner in which the notice must be served, is very strict.  It is not uncommon for courts to dismiss eviction actions when landlords have not perfectly followed all notice requirements and for this reason, careful attention to the details which are included in such notices is critical.  This may be the case even though the tenant has not in fact paid the rent or has violated the rule or lease term that is the issue in the hearing.

In cases where the tenant has violated rules of the landlord or conditions included in the lease agreement, tenants typically get more than one chance to cure the problem before the landlord may proceed to eviction.  Under most state laws, for a lease violation such as noise or something similar, tenants are given a 7 day notice to cure the violation.  This initial notice is like a “warning”, because it generally cannot lead to eviction by itself.  However, tenants may be subject to eviction if a second violation of the same type occurs within a specific time period, which most often is six months.

Finally, when the notice that is being given is because the tenant is creating a clear and present danger to the health and safety of himself or others, then the notice period is typically a shorter period and the tenant can be subject to eviction with a single violation. 

B. Eviction Court Hearings

The next step in the eviction process following the notices described above is the filing of a legal action to regain possession of the property from the tenant.  Once the petition is filed and properly served on the tenant according to applicable law, a hearing before the court is set within a short time.  A typical eviction hearing would occur within approximately one week of the date of the filing of the action.  Eviction hearings are summary proceedings where the court has jurisdiction over a very limited issue or set of issues.  For example, if the eviction is based upon a failure to pay the rent on time, the court will determine only whether the tenant received a proper notice requiring them to pay the rent, whether the tenant cured the unpaid rent within the required time period and finally, whether the tenant was properly served with notice of the eviction hearing.  If the court finds in favor of the landlord on these points, then an order will be entered giving the landlord the right to possession of the property.  In other cases that involve more complex questions such as whether a tenant violated a term of the lease or a rule in place for the property, typically more evidence must be provided and evaluated by the presiding judge.  In some cases, tenants will voluntarily vacate the premises. When they do not, the landlord may have to request that the sheriff’s department serve what is commonly referred to as a writ of possession on the tenant, thereby forcibly removing the tenant (and his or her belongings) from the property.

Conclusion:

For landlords who are faced with the prospect of evicting tenants, it is important to carefully follow the legal notice requirements and procedural requirements to ensure that the eviction will be successfully accomplished.  Failure to do so may result in the landlord having to restart the eviction process which is both expensive and time consuming.  For landlords new to the process, competent legal advice should be sought to ensure a successful outcome to the process.