Eviction

Eviction is a legal process that may be undertaken to remove a tenant from a rental property. This may be done when a landlord has a need to take legal action because the tenant refuses to leave, or in the event a mortgage holder has foreclosed on the property, and wants the tenant out.

The majority of evictions are the result of a tenant’s failure to pay rent, or the tenant’s frequent violation of the terms of the lease or rental agreement. Regardless of the purpose of the eviction, the landlord must follow a process specified by the law. To explore this concept, consider the following eviction definition.

Definition of Eviction

1. noun.  The process or act of expelling of a tenant from a home, building, or land, through a legal process.
2. noun.  To remove or expel a person from land, a building, or a home through a legal process.

Origin     1400-1450       late Middle English evicten 

What is an Eviction

An eviction is the legal process used by landlords to regain possession of their real property when a tenant refuses to leave. Local, state, and federal laws govern evictions, though state laws regulate evictions concerning residential properties. Typically, even state laws governing eviction and rental properties are based on the federal Uniform Residential Landlord and Tenant Act, also referred to as “URLTA.” Regardless of the state, or the circumstances, a landlord must follow a legal process which can be expensive and time consuming for all parties that are involved.

Valid Reasons for Eviction

There are many reasons for eviction. Before even beginning the eviction process, the landlord should determine whether he has a legal and valid reason to request that the tenant vacate the premises. Without valid reasons for eviction, the courts commonly refuse to evict tenants, and initiating eviction proceedings without a valid reason may subject the landlord to civil legal actions by the tenant.

Though eviction laws vary from state to state, there are certain common reasons landlords seek to evict tenants. These valid reasons include:

• Failure of tenant to pay rent
• Tenant’s violation of the lease agreement, such as using the premises for illegal purposes, having a pet without permission, or subletting the premises
• Damage to the property caused by tenant or tenant’s guests
• Tenant’s violation of local occupancy or health ordinances
• Tenant’s causing health or safety hazards on the property

Eviction Without Cause

It is possible for a landlord to initiate eviction without cause, but the provisions of the law must be strictly adhered-to, as such laws effectively protect tenants against unfair eviction. When filing an eviction without cause, the landlord must give the tenant anywhere from 30 to 60 days notice to vacate the residence. The exact notice period is specified by the laws of the state in which the property is located.

In the event the tenant and landlord have entered into a fixed-term lease agreement, the landlord must wait until the lease has expired before he can demand that the tenant vacate, assuming the tenant is not in violation of that lease agreement in some way. Most often, if the landlord gives proper notice to a tenant to vacate at the close of a lease, it is not necessary to take legal action, though the eviction process may be used to oust tenants who overstay their welcome.

For example:

Wayne leased his duplex for a period of six months. During that time, the landlord had been frustrated by receiving phone calls from the neighbors for various problems, though they were not severe enough to give the landlord cause to evict Wayne. Thirty days before the end of Wayne’s lease, the landlord provides him with a 30 day notice to vacate the premises, which coincided with the end of the lease.

When that date came, however, Wayne told the landlord that he hadn’t found a new place to live yet, and that he was trying to save enough money to pay a deposit and rent on another home. While Wayne did pay that new month’s rent on time, the landlord simply wanted him out, so he filed eviction proceedings against Wayne with the local court.

Eviction Process

If a tenant fails to vacate the premises, even after being given proper notice, the landlord may then initiate the eviction process by filing an eviction complaint, called an “unlawful detainer complaint” in most jurisdictions, with the local court. The Unlawful Detainer Complaint and a Summons must be properly served on the tenant. This can be done by a qualified process server, or a member of the sheriff’s department in many jurisdictions.

Service may also be done by another person not involved in the lawsuit, such as a friend of the landlord, though the court requires a document called a “Proof of Service,” or “Affidavit of Service,” be filed, in which the individual serving the documents swears under oath that the documents were served according to the legal requirements.

When an eviction complaint is filed with the court, a hearing date is scheduled and written on the court summons, which must be served with the complaint. This gives the tenant sufficient notice to prepare for the hearing. It is up to the landlord to prove, at the hearing, that there is a good and legal reason to evict the tenant.

Eviction Hearing

Proving a claim for eviction often involves the submission of such evidence as late payments, bounced checks, the original rental or lease agreement, and any other documents that support the landlord’s case. The landlord may also provide copies of any relevant communications between himself and the tenant, which may be in such forms as letters or notes, emails, text messages, and voicemail recordings. Where appropriate, the landlord may call witnesses to testify in court.

At an eviction hearing, the tenant may present his case for staying to the court. This involves his own testimony, and he may also submit evidence in the form of photos, communications, and witness testimony. The law governing evictions offers many protections to tenants, but also protects landlords from tenants who damage or destroy the landlord’s property, or simply will not leave when legally asked to go. In many cases, the court may agree that the tenant must move out, though it may award monetary damages to either party, depending on the circumstances.

For example:

Rosario had lived in her apartment for 8 months one a 1-year lease, when the landlord gave her a 60-day notice to vacate the apartment. The landlord cited complaints received from other tenants that Rosario frequently has loud guests to her apartment, loud music playing until all hours of the night. Rosario’s landlord, George, had warned her twice about the noise complaints.

Rosario had not moved by the end of the 60-day time period, and when asked about her intentions, she told the landlord that she has a 1-year lease, and she doesn’t have to move out until that time. George promptly files an unlawful detainer complaint against Rosario in an attempt to regain possession of his property. Angry, Rosario stops paying rent, saying she needs to use that money to rent another apartment.

At the eviction hearing, George explains the situation to the judge, providing the original lease agreement and other pertinent documents, including notarized statements by four other tenants. While George has not yet been able to gain entry to inspect the premises for damages, two of the four tenant statements confirm there are some significant damages to the carpet and one kitchen appliance. George also provides proof that Rosario had stopped paying her rent altogether.

Rosario denies that she has caused any damages to the apartment, and argues that she could not be legally asked to leave before her signed lease was expired. Rosario stresses the point that she needed the money she would have paid to the landlord in order to pay a deposit and first month’s rent at a new place. She also claims that the landlord has been harassing her since he asked her to leave. Rosario has asked the court to award her $5,000 for pain and suffering.

Landlord George has asked the court for an order evicting Rosario immediately, and for monetary damages in the amount of $2,700 in unpaid rent, as well as $2,300 in anticipated expenses for damages to the apartment.

In this case, the landlord followed the proper procedure for the eviction process, and he seems to have valid reasons for evicting the tenant. The court is likely to issue an eviction order, referred to as a “writ of possession,” which gives the tenant a specified amount of time to vacate the premises. That time period varies by jurisdiction, but is usually anywhere between 24 hours to one week. Should the tenant fail to get out in that time, the landlord may have the sheriff escort her out, usually with only the belongings she can carry. Specifics on this law-enforcement enforced eviction can be obtained at the court from which the eviction order was received.

In this case, the tenant’s request for damages is likely to be denied, as there was sufficient evidence in the form of witness statements and documentation that she was in violation of her lease. While the landlord can likely obtain monetary damages from Rosario, he may wait until he has regained possession of the apartment so that he can get estimates for any repairs that need to be made. At that point, the landlord may file a small claims lawsuit requesting unpaid rent, as well as those damages.

Once a court issues a writ of possession, it is given to the appropriate law enforcement agency. An officer physically posts the notice on the property to formally inform the tenant that the officer will return on a specified date to confirm that the tenant has vacated, or that, should the tenant still be present, to physically remove her and her property.

Default Judgment

If a tenant fails to appear at the court hearing, the landlord may automatically win his case, being award a “default judgment.” When this occurs, the landlord is issued a writ of possession to have the tenant removed from the property. This writ must still be given to law enforcement for posting and execution.

What is an Eviction Notice

After a landlord has determined that there is a valid reason to begin the eviction process, he must give the tenant adequate written notice. Such notice must provide sufficient time, which is set by law, usually 30 to 60 days. Exactly how an eviction notice must be delivered to a tenant also varies by jurisdiction, and it is important for the landlord to research this topic.

Some jurisdictions require eviction notices to be delivered personally to the property (usually posted on the door), others require eviction notices to be delivered by certified mail with delivery confirmation, or by a process server or courier service. In any case, the landlord must obtain proof of the date, time, and manner the notice was delivered.

An eviction notice must contain certain specific information, including the reason for the eviction and the amount owed to the landlord. Because a variety of situations may lead to eviction, there are a number of eviction or termination notices that may be used. These include:

1. Pay Rent or Quit – This notice is served to a tenant who has failed to pay rent. The tenant is given a specified amount of time, 3-5 days in most jurisdictions, in which to pay the full amount of rent due, or vacate (“quit”) the property.
2. Cure or Quit – A cure or quit notice is used for a tenant who violates the terms of the lease agreement, such as having a pet on the property when it is prohibited in the lease or rental agreement. Cure or quit notices are also used when tenants are frequently too loud, use the premises for illegal activities, or damage the property. This type of notice gives the tenant specified amount of time to correct (“cure”) the problem, or leave (“quit”) the property.
3. Unconditional Quit – An unconditional quit notice is a ruthless option, ordering a tenant to vacate the property without giving him an opportunity to pay the rent, or correct any lease violation. In most states, an unconditional quit notice may only be legally used if the tenant has:

• Repeatedly violated significant terms of the lease or rental agreement
• Paid his rent late on multiple occasions
• Conducted illegal activity, such as using or dealing drugs, on the premises
• Caused serious damage to the property

Uniform Residential Landlord Tenant Act

The Uniform Residential Landlord Tenant Act of (“URLTA”) outlines the rights and responsibilities of both landlords and tenants in the United States. The URLTA was created by the National Conference of Commissioners on Uniform State Laws, and ratified in 1972, and was revised in July 2015. The Revised Act addresses the issues of what to do with property left behind by an evicted tenant, how to handle security deposits, and termination of a lease in the event of domestic violence or sexual assault on the premises. The Revised URLTA may be downloaded at this link.

The National Conference of Commissioners on Uniform State Laws is not a government agency, but provides guidelines in an effort to move the states toward uniform laws in Landlord/Tenant Law. Participation in, or adoption of, the URLTA guidelines, is not mandatory. While some states have adopted all provisions of the URLTA, others have accepted only portions of the Act.

The URLTA specifically outlines the duties of a landlord.

An example found in 2.104 is:

“Comply with the requirements of applicable building and housing codes materially affecting health and safety;

Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition;

Keep all common areas of the premises in a clean and safe condition;

Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances, including elevators, supplied or required to be supplied by him;”

It also lists the duties of the tenant.

An example found in Section 3.104 is:

“Comply with all obligations primarily imposed upon tenants by applicable provisions of building and housing codes materially affecting health and safety;

Keep that part of the premises that he occupies and uses as clean and safe as the condition of the premises permit;

Dispose from his dwelling unit all ashes, garbage, rubbish, and other waste in a clean and safe manner;

Keep all plumbing fixtures in the dwelling unit or used by the tenant as clean as their condition permits;”

Man Fights Eviction in Santa Monica and Wins

In 1991, Paul Aron entered into a lease contract with WIB Holdings LLC. Over the years, Aron made improvements to the leased apartment using his own money. In 2014, Aron was served with an eviction notice that claimed he had breached his contract by making renovations to the apartment, though the renovations had been made roughly 20 years prior (in the 1990s).

Aron fought the eviction and the case went to trial. On February 4, 2015, the jury unanimously ruled that Aron could not be legally evicted for acts that had occurred so long ago, of which the landlord had been aware for quite some time. The ruling stated that the owner of WIB Holdings, Barbara Bills, had waived her right to evict Aron by waiting so long after the renovations had occurred to take action, and that her current attempt to evict Aron was done in malice.

Following the Aron trial, the City of Santa Monica investigated WIB Holdings and Barbara Bills regarding other reports of tenant harassment. The investigation is based on the claim that WIB Holdings had attempted to buy out at least three controlled-rent tenants, who were paying an average of $748 per month in rent, in an attempt to fill those units with new tenants who would be charged the current rate of more than $1,700 per month. When Bills was turned down on these buyout attempts, she allegedly entered those apartments illegally and bullied the tenants, attempting to find or cause some breach in their lease agreements to give her cause to evict them.

As a result of this and other similar cases, the city of Santa Monica revised its tenant harassment statutes. According to Mayor Kevin McKeown, landlords in the area had begun engaging in such guerilla tactics as claiming they had never received tenants’ rent checks, repeatedly making intrusive inspections of tenants’ apartments and personal lives, and even making threats while offering to buy out the tenants’ leases. Regarding the city’s updated laws, Mayor McKeon stated:

“Harassing inspections and invasions of privacy are now prohibited, and we’ve created a process for lease buyouts that requires they be in writing, with full disclosure of tenant rights, filed with the City and subject to a 30-day period for reconsideration.”

Related Legal Terms and Issues

• Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
• Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
• Hearing – A proceeding before the court at which an issue of fact or law is heard, evidence presented, and a decision made.
• Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
• Malice – The intention to do evil, inflict injury, or cause suffering of another.
• Real Property – Land and property attached or fixed directly to the land, including buildings and structures.
• Summons – An order or citation to appear in court, or to appear before a judge or magistrate.