The first phase in the process of eviction discussed above contains several sub-phases that lead up to the ruling by the court as to who has the legal right to possession. These sub-phases are as follows:
Under the required eviction notice process, the landlord must notify the tenant that he is seeking possession of the property being rented or leased. In such notification, the landlord must state the reasons for regaining possession of the property.
This notification is typically and formally known as a “Notice to Quit.” The Notice to Quit is a formal document that courts will provide to landlords upon request. The landlord is usually required to include the following information in the Notice to Quit:
A Notice to Quit is otherwise known as a “cure” notice. This is because a Notice to Quit is a way for the landlord to give the tenant the opportunity to fix or to cure whatever violation the tenant committed with respect to the lease, including non-payment of rent or non-compliance with a material provision in the lease agreement.
However, in most states, landlords are given more power to remove their tenants without giving them the opportunity to fix or cure the violation. This is through the issuance of an “Unconditional Quit Notice.” An Unconditional Quit Notice allows a landlord to require the tenant to immediately vacate the premises without any opportunity to remedy the situation.
Due to the extremely onerous nature of an Unconditional Quit Notice, state laws that allow for such a notice would only permit it if the underlying reason for the notice constitutes very serious violations, or in severe situations in which the economic interest and physical safety of the landlord are deemed entitled to additional protection. For example, in the following states, an Unconditional Quit Notice is allowed for the following reasons:
Under this step, if the tenant fails to respond adequately to the landlord’s proper notice in a timely manner following receipt of the notice, the landlord is entitled to file for eviction.
However, it’s important to note that in almost all states, if the basis for the landlord seeking possession is the tenant’s non-payment of rent, the landlord is not automatically allowed to file for eviction. In these states, statutes require that landlords give their tenants a specific number of days (typically ranging from as short as 3 days to as long as 30 days) for the tenant to settle their rent. Only when they fail to pay such rent will a landlord be entitled to file an eviction claim in court and have a court hearing.
Personal service of the notice and the summons and complaint is required in most states. Personal service requires that the summons and complaint must be given directly to the tenant himself to ensure his constitutional right to procedural due process. The service of these documents is required to be done by either a sheriff or a process server.
At this point, the tenant has to respond to the complaint and summons. Typically, a tenant has between two and five days to respond.
If the tenant fails to respond to the complaint in a timely manner, the landlord is authorized to request a writ of possession by default. A default judgment occurs when one party to a case has failed to perform a court-ordered action (in this case, the non-responding tenant),which results in the court settling the legal dispute in favor of the compliant party (in this case, the landlord who complied with the notice requirement).
However, if the tenant responds in a timely fashion, the action will proceed to court,where the landlord must prevail in order to obtain a writ of possession.