Back Eviction Process & Laws (2021)

Eviction Process & Laws (2021)

Eviction of rent-paying tenants is a real problem often overshadowed by the equally disturbing problem of homeowner evictions. According to data from Eviction Lab at Princeton University, there was roughly 1 eviction filing for every 17 renter households between 2000 and 2016, with approximately 1 in 40 renter households evicted over the same period. This translates to roughly one million evictions every year. The COVID-19 pandemic has worsened the situation. As of this writing, in the 6 states and 31 cities that Eviction Lab tracked, a total of 451,772 eviction claims have been filed by landlords against rent-paying tenants during the pandemic.

While more can be done by government policymakers to address this problem, one thing that individuals, both landlords and rent-payers alike, can do to protect their rights and interests is to familiarize themselves with how the eviction process works.

How Important are Eviction Process and Laws?

Eviction is a legal process where a landlord is entitled to prevent or stop a tenant from using or occupying a rental property owned by the landlord. The landlord who seeks an eviction will typically do so whenever the tenant in a rental agreement has failed to pay rent or has violated a material or important provision in their lease agreement.

Landlords may also evict renters for a slew of other legitimate reasons, such as taking additional sub-lessees without consent, causing damage to the landlord’s property, causing a disturbance, or simply conducting illegal activities within the leased premises.

What is the Eviction Process by State?

Under eviction laws across all states, a landlord is only entitled to legally evict a tenant through judicial means. Thus, states generally do not allow “self-help” evictions where the landlord “helps himself” in terminating the lease by physically entering the leased premises and causing the tenant to leave with the use of a “reasonable amount of force.”

The eviction process, which is a judicial process, was intended by state legislatures to avoid the negative effects of self-help eviction on tenants while at the same time ensuring the health of the rental market by allowing landlords to expeditiously remove tenants who “do not meet market expectations.” In order to evict a tenant, the landlord must sue the tenant in court. If the court decides to evict, then the landlord must allow a law enforcement officer to enforce the judgment.

How Does the Eviction Process Work?

While eviction procedures vary from state to state – and sometimes even within states, depending on local municipality rules – the basic steps and requirements are substantially similar among these states. The two major phases of the eviction process, according to eviction laws by state, are as follows:

  1. First, a court must determine who is legally entitled to possession of the property – the landlord or the tenant.
  2. Second, if the court grants a writ of possession to the landlord, a sheriff or marshal will execute the actual eviction.

What Are the Steps in the Legal Eviction Process?

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:

Step 1: Notification by Landlord

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:

  • The reason for seeking possession of the leased premises;
  • The exact name and the address of each adult tenant that the landlord seeks to evict, including the exact rental unit number and floor on which the tenants reside; and
  • The signature of the landlord.

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:

  • Alabama – allowed when the tenant is found to have possessed or used illegal drugs or illegal firearms within the leased premises, or when a criminal assault is committed against another tenant or guest on the leased premises [Ala. Code § 35-9A-421]
  • California – allowed when the tenant assigns or subleases the property to another without permission of the landlord, or when the tenant commits any nuisance or unlawful activity within the leased premises [Cal. Civ. Proc. Code § 1161(4)]
  • Florida – allowed when the tenant commits destruction, damage, or misuse of the landlord’s or other tenants’ property by intentional act or a subsequent or continued unreasonable disturbance. [Fla. Stat. Ann. § 83.56(2)(a)]
  • Missouri – allowed when the tenant used the premises for gambling, prostitution, or possession, sale, or distribution of controlled substances [Mo. Rev. Stat. §§ 441.020, 441.030, 441.040]

Step 2: File For Eviction 

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.

Step 3: Service of Notice, Summons and Complaint

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. 

Step 4: Tenant’s Response 

At this point, the tenant has to respond to the complaint and summons. Typically, a tenant has between two and five days to respond. 

Step 5: Adjudication on the Merits

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.

How Long Does an Eviction Take?

Lauren A. Lindsey (2010) explains that the eviction process outlined above has been deliberately streamlined across most states. The typical timeline between the landlord’s initial issuance of a notice to the tenant and the landlord’s receipt of a writ of possession may range from a few days (if the tenant fails to appear) to a few months(if the tenant contests the eviction).

How to Prevent Evictions?

If the eviction is warranted, meaning the landlord is indeed within his rights to validly enforce eviction, there is typically no direct remedy available to the tenant to prevent an eviction other than to comply with all the conditions included in the Notice to Quit or Unconditional Quit Notice.

However, there are instances where the landlords wrongfully use the eviction process as a way to retaliate against the tenant for taking steps to enforce their own rights. This retaliation is typically known as “retaliatory eviction,” and in most states, statutes that prohibit retaliatory eviction are present to protect tenant rights. As Lindsey (2010) notes, tenant rights that are most commonly protected from retaliatory eviction include: 

  1. Reporting of any housing code violation that materially affects health and safety to a supervising governmental agency with the power to enforce the housing code against landlords;
  2. Complaining to the landlord for their failure to maintain the premises; and
  3. Forming or joining a tenants’ union or other tenants’ rights advocacy group.

Final Thoughts

With the problem of tenant eviction continuing unabated in the U.S., landlords and rent-paying tenants will be served well if they remain aware of their respective rights and obligations in a lease arrangement in order to ensure that no injustice is committed in eviction proceedings and eviction lawsuits.

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