5 Simple Legal Steps to Evict a Tenant

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The law allows a landlord to evict a tenant personally or through an attorney briefed to render legal assistance. The knowledge and understanding of extant laws in relation to how and when to issue eviction notice, appreciate your tenancy agreement and following through the process legally marks the beginning of a successful eviction route against. Generally to evict a tenant, may cost the landlord some money which is between the range of $2,500 to $5,000 depending on the jurisdiction.

Five Simple Steps to Evict a Tenant are:

  1. Study Your State Landlord and Tenant Laws before Initiating Steps to Evict a Tenant

Every state has her Landlord and tenant laws which may differ from each other. It is important for you to learn from the law what you can legally do to evict a tenant. These laws clearly provide for the step by step procedure and the time frame within which each step may be taken and the remedies available to each party. Parties must avoid self help by ensuring that the eviction process involves a competent court as a DIY eviction is not a legal alternative.

Landlord and Tenant laws of each state differ extensively by state and even by local municipality. For instance, big states such as New York City are nearly ludicrously tenant-friendly to the extent that tenants in New York City, particularly those who live in rent-stabilized units, do regularly get away without paying rent for six months or more prior to when an actual eviction takes place.

In other states or jurisdictions such as Kentucky, Arizona, Texas, Florida, Colorado, Georgia, Mississippi, or Indiana, they are considered landlord-friendly states because property owners will have a much easier time evicting a tenant and the court proceedings move faster and at times litigation between landlord and tenants are concluded within one month.

  1. Read and Understand Your Lease Agreement before Tenant Eviction

A Lease Agreement is a contract between a landlord and a tenant stating the terms and conditions of lease or tenancy. It is a written documentation of all the relevant details agreed between the landlord and tenant in respect of the tenancy.

It is therefore germane that you carefully read and understand your lease agreement because the provisions of the agreement will form the basis of the legal and valid reason for evicting your tenant.

Some tenants, upon issuance and service of eviction notice may be willing to leave to avoid the troubles of dealing with an eviction process, while you may find other difficult tenants who will want to put up a fight until the pungent end.

Evicting a Tenant Based on Your Lease Agreement

The time frame or duration for issuance and service of eviction notice is similar in most states as it depends on the type of tenancy. A tenant on a month-to-month lease agreement will only be entitled to 30 days notice to vacate.

The law of each state usually makes provision for 30 days notice to vacate for tenants on a monthly lease; however, most lease agreement also clearly state so or sometime points out the applicable landlord and tenant law to tenants in the body of the agreement. The purpose of this provision is to avoid ambiguity and complications during eviction process and also to be able to get the tenant out with a simple eviction notice.

There are also some other states where a landlord is not obligated by law to state a reason to evict a tenant.

A landlord who seeks to evict a tenant in the middle of a one year lease may face a complicated situation. It may not easily possible that you get such tenant out with a simple notice as you may have to go through housing court. In states considered as tenant-friendly state such as New York, the legal process may mean a long and costly multi-month legal voyage and ordeal. On the other hand in states considered as landlord-friendly state such as Colorado, a landlord can evict a tenant in a short time as little as 72 hours.

Nevertheless, in each case, evicting tenants on a monthly rental agreement is much easier than evicting tenants who are in the middle of a lease.

Landlords must consider the type of lease and the provision of the rental agreement breached or violated before initiating an eviction process.

Frequent types of lease violation:

  • Breaking the Law: Where the tenant breaks the express provision of law. This violation amount to a breach of lease agreement in all states
  • Rent Violations: Failure to pay rent as at when due or partial payment of rent
  • Violating Building or HOA Rules: These are normally listed as an addendum to the lease agreement
  • Subletting: Subletting or parting with possession without the written consent pr permission of the landlord violates the terms of the lease
  • Unapproved Pets: A tenant may not keep pets, except service animals, without the consent of the landlord
  • Damaging the Property: Intentional damage, not fair wear and tear will also be deemed as a violation of the terms of lease
  • Extra Occupancy: A typical lease or tenancy agreement will always list the number of class of occupants allowed in a premises, a deviation from this will amount to a lease.

Duty of Landlord to Uphold Covenants in the Lease Agreement before Tenant Eviction

A lease agreement will always provide for the duties or responsibilities of landlord and tenant under the agreement. A landlord is under obligation to ensure that he upholds his responsibilities and have not violated the violated the terms of the lease agreement before initiating an eviction process against the tenant.

In states considered as tenant-friendly such as New York or New Jersey, tenants are allowed to withhold rent where the landlord fails or refuses to uphold his uphold his responsibilities as a landlord. Lease agreements in states like New York must contain warranty of habitability.

The warranty of habitability clause provides that a landlord must keep the rental unit free from infestations, and have sufficient heat, hot water or else maintain the unit in a “habitable” condition.

A tenant can stop paying rent where a landlord fails to comply with the warranty of habitability clause; therefore steps taken by the landlord to evict a tenant when he has failed to uphold the terms of the lease will amount to efforts in futility..

There are other jurisdictions were the landlord is required by law to prove that the tenant breached the lease agreement in order to file an eviction. Landlords should endeavor to issues with the tenant through correspondence such as writing by sending emails, notices, or letters to the tenant.

  1. Send the Tenant an Eviction Notice

A landlord who has made efforts to comprehend his state laws regulating landlord and tenant as well as the violation in his lease agreement breached by the tenant can send the tenant an eviction notice.

An eviction notice is a written demand from a landlord to their tenant to get them to vacate their rental property and deliver vacant possession to the landlord. Generally, Eviction Notice needs to be mailed via certified mail directly to the tenant.

Service of an eviction notice does not mean a tenant will be definitely evicted. It is also not always a legal document from a court or sheriff. The purpose of eviction notice is to give the tenant a specific amount of time to either pay the rent they owe, discontinue their conduct that violates the lease and tenancy agreement, or face a formal eviction lawsuit in court.

Upon the expiration of an eviction notice which ranges from 3 to 30 days, depending on the state and the category of eviction notice and/or tenancy; then the landlord can now institute a proper eviction lawsuit in court. An eviction notice is a condition precedent to commence an action in court. You must notice that an eviction notice is not a court order, it just a step in the eviction process. A tenant can only be evicted by a court order can where he elects not to vacate the premises.

Types of Eviction Notices

There are three major types of eviction notices which are to wit:

  • Notice to Pay Rent or Quit

Notice to pay rent or quit is a type of eviction notice served on a tenant with the options to remedy the situation and continue to stay in the rental unit, but with a warning to escalate the eviction process if the tenant fails to remedy the state of affairs.

This is usually the first step in the eviction process, a notice to pay rent or quit, is an eviction notice served on a tenant who has defaulted in paying rent in line with lease agreement or after and arrears of more than one or two months is due. This notice offers the tenant the option to pay the rent due or owed in order to circumvent further eviction proceedings.

The tenant will be able to skip further proceedings and continue to retain the rental unit if he pays the rent, but if the tenant is unable to pay the rent, a formal action may be instituted against the tenant.

A notice to pay rent or quit might be enough to get a tenant in default to start paying rent again. This is a faultless first step before involving the courts.

  • Notice to Cure or Quit

Notice to cure or quit another type of eviction notice served on a tenant with the options to remedy the situation and continue to stay in the rental unit, but with a warning to escalate the eviction process if the tenant fails to remedy the circumstances.

It is a notice to comply or vacate, or a notice to perform covenant provided in the tenancy agreement or quit. It is often issued and served on tenants who have violated their lease terms in one way or the other. It offers the tenant the options of “curing” (bringing to a halt) the abhorrent conduct that is in contravention of their lease terms or face the jeopardy of further eviction proceedings.

Examples of situations where a notice to cure or quit may be necessary are: where a tenant continues to have unsettling parties, damage the property, carry out unlawful activity on the premises or causing nuisance to other tenants.

Notice to Quit

A notice to quit is an eviction notice that does not give the tenant any options to remedy the situation. It unequivocally offers the tenant a specific amount of time to deliver vacant possession of the rental unit to the landlord or face formal eviction proceedings in court.

The duration or number of days set in a quit notice may differ by state; however it ranges from 7 to 30 days commencing from date of service. Landlords who do not want to waste time must issue and serve a quit notice on a defaulting tenant as soon as the breach occurs or when it came to the knowledge of the landlord.

A landlord must wait for the lapsion of the quit notice after service of same before commencing the eviction proceedings.

Procedure to Issue and Serve an Eviction Notice to a Tenant

Tenants usually deny receipt of an eviction notice considering that it is a fundamental legal requirement or condition precedent to instituting an eviction lawsuit. It is imperative that you keep a record of how the eviction notice was served which will serve as a documentary proof in court.

The most excellent way proof service is by sending them the notice through certified mail or by attaching the eviction notice to the door of the tenant in a conspicuous manner and take a photograph same.

  1. Institute Eviction Proceedings in Court

The only remedy to evict a defaulting tenant is through a court process. To institute a lawsuit, you may retain the services of a real estate attorney to handle the whole eviction process against the “unlawful detainer” or contact your local courthouse to file your eviction lawsuit.

It is illegal in all jurisdictions for a landlord to take the law into its hand by attempting to change to evict the tenant in a manner that is unknown to law such as: changing the locks, lock up utilities, or actually confiscate the property of a defaulting tenant.

An attorney may charge his professional fees for legal services. It may vary from $2,500 to $5,000 or more especially if the eviction proceeding advances to trial.

If you elect to file the eviction lawsuit by yourself, it may cost you approximately $1,000 excluding what you will pay yourself for your time. My candid advice is that you engage the service of an experienced real estate attorney.

Documentary Evidence Relevant to Proving Your Eviction Case as you Prepare for Court

It is important that you assemble everything you may need to provide the court to prove your eviction case. Relevant documents may include but not limited to: a copy of the eviction notice, copies of texts and emails, the tenancy agreement, and any other document or fact that might help prove your case.

You may not be required to produce all the documents at the time of filing the lawsuit, depending on the jurisdiction, but you will certainly need it at the hearing or trial.

Some of the documents relevant for eviction court proceedings may include:

  • Proof of Breach
  • Lease or Tenancy Agreement
  • Copy of eviction notice served on the tenant
  • Post office receipt to proof that eviction notice were served through certified mail
  • Renter’s license (if required in your  state)

You must also determine the jurisdiction to file the eviction lawsuit. You will be required to present your documents to the court and then actually file the eviction. You will be required to pay an initial filing fee of about $200 to $400, it may also vary depending on the state.

Court Room Experience while Evicting a Tenant

After filing the lawsuit with the court, a date will be fixed for the hearing of the case. You must ensure that you bring all your documentary evidence to court. You must provide all the documents you frontloaded at the time of filing the eviction.

List documents you may also bring with you to court on the date of hearing:

  • Original lease or tenancy agreement
  • Printouts of an email correspondence with the tenant
  • Printouts of text message correspondence
  • Photographs of damages to the unit (if any)
  • Police reports detailing any illegal activities on the property
  • Voice recordings of your phone conversations with the tenant (if the case is filed in a one party consent state)
  • Bank statements accent the financial records of the tenant’s rent payments
  • Copy of the deed to the rental property

These documents may never be needed; however if the tenant attempts to distort the facts as it were before the court, the landlord may present them to keep the records straight as you will agree that it is always better to be prepared.

Evict a Tenant

Oral Evidence of Witnesses may be Called to Eviction Court

It may also be necessary to call witnesses who may give oral evidence or statements to court to corroborate behavior of the tenant that violates the lease term, tenancy agreement or the law.

  1. Scheduling the Eviction

At the end of a trial, if the judge decides the case in your favor, a date and time will be scheduled the local sheriff to help you evict the tenant. The tenant will be put on notice of the time and date of eviction through sheriff’s deputy. The tenant will usually pay some money for the court to arrange for the eviction. The Landlord will also have to pay some money to actually have the sheriff conduct the eviction.

In some cases, the tenant may wish to cooperate by moving their belongings out themselves. In this situation, the sheriff will not help move their belongings, but will ensure that the tenant vacates the unit and you can change the locks and take vacant possession of your property.

A landlord is usually under duty to store a tenant’s belongings in a safe place for 30 days if the tenant does not remove all of their belongings on the eviction day.

It is advisable you hire an experienced real estate attorney to help you handle the intricacies of this legal voyage. You may also hire lawyers through UpCounsel. UpCounsel is an online souk for legal services. It allows users to find and hire attorneys via their site. UpCounsel was founded in 2012; it is based in San Francisco, California, USA, and initially provided its service to users in California and New York. You may also read our article: Top 20 Law Firms in America.

 

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