How to Evict a Tenant

How to Evict a Tenant

by Brette Sember, Esq., August 2015

No matter how careful a landlord you are in screening and choosing tenants, it is likely that at some point you will find yourself needing to know how to evict a tenant. Before you begin a legal proceeding, try talking with your tenant to resolve the problem. If that doesn’t work, you will need to move on to formal eviction proceedings.

Before You Evict

The first thing you need to know about evicting a tenant is that each state has a legal process you must follow to achieve tenant eviction. You cannot take matters into your own hands and simply lock a tenant out, remove their belongings, turn off the heat or water, or use other self-help measures. To be able to evict your tenant for cause, you need a good reason, such as a failure to pay rent, serious damage by the tenant to the property, use of the property for illegal reason by the tenant, or noise or health hazards caused by the tenant. Your landlord rights allow you to evict a tenant who does any of these things. You will need to be able to provide proof of whatever your reason is, so be sure to document everything.

Starting the Process

The legal process begins with an eviction notice or notice to quit. Each state has its own form, so be certain to get the right one and understand the legal requirements for it. This eviction letter is a document that you serve your tenant with (or have him legally served with). The notice must tell the tenant why he is being evicted and give him a date by which to pay the past rent or cure the problem. This notice is sometimes called a 3 day eviction notice because it must be served a certain number of days before you file for the eviction in court. Many tenants will respond to eviction notices by paying the rent they owe and solving your problem. Once you accept any rent money from a tenant, the clock restarts and you have to re-serve the tenant and start the legal process anew to evict him.

Note that it is possible to evict a tenant who has done nothing wrong, but your state likely gives such a tenant more legal protections. In such a case you would likely serve a 30 day eviction notice, which would give the tenant more time to find a place to live.

Filing with the Court

If your tenant does not pay up, you will need to go to court to file your petition for eviction and, in many states, pay a filing fee. You will need to show proof that your tenant was served with the notice of eviction within the time frame required by your state law eviction process. The court will serve the tenant with a summons to appear at the court date, or will issue it and you will arrange to have it served.

Eviction Hearing

At the hearing, you will need to show the court the signed lease agreement (you can still evict your tenant if there is no lease; this is then a month-to-month tenancy), proof of service of the eviction notice, any written or digital communications with the tenant, and proof that establishes your tenant violated the lease agreement. You can testify, offer photographs or videos, call witnesses to testify, and question the tenant yourself. In addition to evicting the tenant, you may be able to sue for back rent in the same proceeding and obtain a judgment for that. If not, you will need to file a separate case. If the tenant does not show up, you automatically win.

Tenant rights allow your tenant to try to defend the case by claiming your eviction notice was not in compliance with the law, improperly served, or not timely. Tenants can also defend the case by claiming you violated their rights as a tenant or failed to fulfill your responsibilities under the lease, in addition to offering proof that what you are claiming is simply untrue. Should the tenant win, your only option is to wait for the lease to run out or for the tenant to create another breach of the lease, in which case you would go back to court and start all over again.

Getting the Tenant Out

Once you win in court, the judge will issue a writ giving your tenant a specific amount of time to pack up and get out, which varies by state (often a day to a week). If the tenant still will not leave, you can pay a fee to have the sheriff come and legally remove the tenant by enforcing the writ. The sheriff does not actually move anything, but merely stands by and gives you the legal authority (and back up) to do it. You then change the locks and the tenant is gone for good.

Removing a tenant generally takes about a month of your time. The process is not complex but it is important that your state’s laws be followed to the letter to be able to evict your tenant easily.

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