Friday, August 29

Real Estate FAQs

Evictions

How Evictions Work

Eviction - that is, physically removing the tenant and his possessions from his rented home or apartment - can't be done legally until the landlord has gone to court and proved that the tenant did something wrong that justifies ending the tenancy.

A landlord can't proceed with an eviction lawsuit, let alone get a judgment for possession of the property or for unpaid rent, without terminating the tenancy first. This usually means giving the tenant adequate written notice, in a specified way and form. If the tenant doesn't move (or reform - for example, by paying the rent, finding a new home for the dog), the landlord can file a lawsuit to evict. (This is sometimes called an unlawful detainer, or UD lawsuit.)

State laws set out very detailed requirements for landlords who want to end a tenancy. Each state has its own procedures as to how termination notices and eviction papers must be written and delivered ("served"). Different types of notices are often required for different types of situations. Although terminology varies somewhat from state to state, there are basically three types of termination notices:

-Pay Rent or Quit notices are typically used when the tenant has not paid the rent. They give the tenant a few days (three to five in most states) to pay or move out ("quit").

-Cure or Quit notices are typically given after a violation of a term or condition of the lease or rental agreement, such as a no pets clause or the promise to refrain from making excessive noise. Usually, the tenant has a set amount of time in which to correct, or "cure," the violation. A tenant who fails to do so must move or face an eviction lawsuit.

-Unconditional Quit notices are the harshest of all. They order the tenant to vacate the premises with no chance to pay the rent or correct the lease or rental agreement violation. In most states, unconditional quit notices are allowed only when the tenant has:

-repeatedly violated a significant lease or rental agreement clause
-been late with the rent on more than one occasion
-seriously damaged the premises, or
-engaged in serious illegal activity, such as drug dealing on the premises.

Many states have all three types of notices on the books. But in some states, landlords may use Unconditional Quit notices for transgressions (such as late rent or violations of rental clauses) that merit Pay or Quit or Cure or Quit notices in other, more tenant-friendly states. In these strict states, landlords may extend second chances if they wish, but no law requires them to do so.

Landlords must follow state rules and procedures exactly. Otherwise, there will be delays in the eviction process while the landlord re-serves his notices or refiles his court papers. Failure to stick to the rules can sometimes lead to the loss of the lawsuit, even if the tenant has bounced rent checks from here to Mandalay.

Landlords often chafe at the detailed rules that they must follow. There is a reason, however, why most states have insisted on strict compliance. First of all, an eviction case is, relatively speaking, a very fast legal procedure. (How many other civil cases are over and done with after a few weeks?). The price to pay for this streamlined treatment is unwavering adherence to the rules. Secondly, what's at stake here - a tenant's home - is arguably more important than a civil case concerning money or business. Consequently, legislators have been extra careful to see to it that the tenant gets notice and an opportunity to respond. Many rent control cities go beyond state laws (which typically allow the termination of a month-to-month tenant at the will of the landlord) and require the landlord to prove a legally recognized reason, or just cause, for eviction.

Even if a landlord properly brings and conducts an eviction lawsuit for a valid reason, there is no assurance of a quick victory. If the tenant decides to mount a defense, it may add weeks--even months--to the process.

The way that the landlord has conducted business with the tenant may also affect the outcome: A tenant can point to a landlord's behavior, such as retaliation, that will shift attention away from the tenant's wrongdoing and diminish the landlord's chances of victory. Simply put, unless the landlord thoroughly knows her legal rights and duties before going to court, and unless she dots every "i" and crosses every "t," she may end up on the losing side.

Finally, if the landlord wins the eviction lawsuit, she can't just move the tenant and his things out onto the sidewalk. Typically, she must give the judgment to a local law enforcement officer, along with a fee which the tenant has paid as part of the landlord's costs to bring suit. The sheriff or marshal gives the tenant a notice telling him that he'll be back, sometimes within just a few days, to physically remove him if he isn't gone.