What Are the Steps for Eviction Proceedings?
To get an eviction lawsuit going (in any court), you’ll usually have to follow these steps:
1. Serve notice
Once you are familiar with local procedures, you are ready to serve your tenant with a document called a "notice." A notice to quit or a notice to vacate is a letter to the tenant which identifies the property in question, lays out the reason for the landlord to repossess the property (if required), and gives the tenant the proper amount of time to remedy the lease violation or leave. The form of notice is specified by the laws of your area and depends on the type of tenancy (month-to-month tenancy, or tenancy at will, for example) and the reason for eviction. Proper service of this document to the tenant is the first step in the eviction process. In some places, you do not need to issue such notice where the tenant is using your property to conduct illegal activities or, in certain circumstances, if the tenant has waived the right to receive notice.
You may be required to prove that you served the notice in accordance with the provisions of the law and that the tenant should have received the notice on the prescribed date. You may be allowed to ask the sheriff to deliver the notice. In some places, you may need or wish to use a company that specializes in the legal service of papers. It can be helpful to keep detailed notes about how the notice was served.
In many places, you also may have to prove that a copy of the notice was delivered to the court or a government agency. If this is the case in your area, be sure you have a copy of the written documentation that the court or agency received the copy. Once the tenant receives proper notice and the time period specified in the notice expires, you have the legal right to begin eviction proceedings. This does not mean you can lock the tenant out or forcibly remove them. They will be entitled to remain in the unit until you actually obtain a court order authorizing the eviction and the proper procedures have been carried out to execute the actual eviction.
2. Initiate the eviction proceeding
After the notice is served and after the expiration of the applicable days specified in the notice, you may initiate an eviction proceeding in court if the tenant has not vacated the unit. You can consult the local rules to learn the specific requirements in your area. Generally speaking, you will be required to submit a petition or complaint to the court and pay a filing fee. The court will issue a notice or summons demanding that both you and your tenant show up in court at a specified date and time. The court notice or summons will be accompanied by the petition or complaint. The petition or complaint should state the grounds for your eviction and any amount of money you believe the tenant owes for not paying the rent. Be sure the notice and petition or summons and complaint are served upon the tenant in accordance with local law. If they are not, your case could be delayed or dismissed.
3. Wait for the answer day and filing date
Once the tenant receives the summons and complaint, they may be required to respond to the complaint by a certain date. The tenant may either concede that your complaint is valid or offer a defense.
When a tenant offers a defense, they have the right to a fair hearing, and the court will set a date for a hearing. Here are some examples of defenses the tenant might offer:
Court documents were either improperly served or the tenant's name was misstated;
You are retaliating against the tenant because the tenant took a legally protected activity, such as making a complaint to a government agency or tenant organization; or
Your complaint is invalid.
If your complaint relates to the tenant’s failure to pay rent, the tenant’s defenses may include the following:
They have already paid all or part of any rent you are demanding;
They withheld the rent because you have not made repairs you are legally required to make;
You stated an incorrect amount of overdue rent in your complaint; or
Because of a previous overcharge, you are demanding more rent than is actually due.
4. Attend the hearing
Once the court has received the tenant’s answer (if required) and has fixed a hearing date, it is essential that you go to court on time and present your case in a professional, objective manner. If you do not appear in court, the case may be dismissed.
In most places, if your tenant does not appear in court at the appointed time, you are likely to win in absentia by default. However, if the tenant provides a good reason for being absent in advance (by documenting that they were hospitalized, for example), the result may be different. In the event of a default judgment, you will be required to file with the court an affidavit affirming that the tenant is not a military service member or other protected Federal service member. There may be additional procedures you may need to follow before you can have a judgment entered and proceed with an eviction if the tenant is a service member covered by the Service Members Civil Relief Act and the tenant did not show up in court.
When you appear before the court, it is important to present your facts as objectively as you can. It is usually appropriate to state them in chronological order. When the tenant speaks, do not interrupt. Make notes if necessary during the tenant’s presentation. Then, after they have finished, ask the judge if you may respond. When making your comments, be as objective as you can.
5. Get an eviction order
Once a judge rules in your favor, you will receive an order giving you the right to evict your tenant. You may have to wait for the actual order until your tenant’s appeal period has expired.
6. Enforce the eviction
You may need, or be required, to hire the sheriff to remove the tenant forcibly from the premises in order to enforce the eviction. The sheriff must give the tenant the notice that is required by local laws. At the time of the notice, the sheriff usually must specify when the tenant has to leave.
In some locations, landlords are required to hire evictors to carry out the eviction and/or attempt to store any property or items left outside the premise by evicted tenants. Laws regarding how, where, or for how long the items should be stored and for how the storage should be paid for vary by region.
In some places, the tenant has the right to request a Stay of Execution. Such a ruling temporarily blocks your eviction right and gives the tenant more time to refute your complaint. However, while the Stay of Execution is in force, the tenant may still be legally responsible for paying rent to you, depending on local laws.
- If Nothing Else Works Out, Should You Attempt to Evict Your Tenant?
- How Should You Initiate an Eviction Procedure?
- How Should You Conduct an Eviction Procedure?
- What Can You Expect to Encounter During an Eviction Hearing?
- Should You Try to Evict the Tenant Yourself?
- How Do Evictions Affect Your Maintenance Responsibilities?