The first step landlords must take when they want to remove problem tenants from their rentals is to terminate the tenancy. In most states, this involves giving the tenant a written notice that will either allow them a certain amount of time to fix the problem that led to the notice (called a "cure period") or give them a deadline by which they must move out. Delivering the notice, known as “serving,” must be done according to the procedure outlined by law.
The tenant's response to the notice determines whether the landlord can file an eviction suit. When tenants who were given a second chance remedy the situation within the cure period, the landlord cannot file an eviction suit. However, when tenants ignore an unconditional notice to move out, or fail to cure the situation (fix the problem, stop the behavior, and so on), the landlord can begin eviction proceedings.
Filing an eviction lawsuit is the only legal way to physically remove tenants from a rental—landlords cannot change the locks, remove tenants’ property from the premises, or take other “self-help” measures to get the tenants out.
If the landlord wins the eviction lawsuit, the landlord will have the right to have law enforcement physically remove the tenants and take possession of the rental. In most cases, tenants move out before law enforcement arrives.
Hiring a Lawyer, Or Not
Whether you're filing or responding to an eviction lawsuit, you'll want to give some thought to working with a lawyer. The amount of money you can expect to pay will vary according to the type of case, its complexity, the geographic area in which the property is located, the experience of the individual lawyer, and whether rent control or eviction protection measures apply.
Landlords often handle eviction suits on their own in an effort to save money. For many landlords—especially those who’ve been through the eviction process before—this approach makes sense. In certain situations, though, landlords should consider consulting with or hiring a local landlord-tenant attorney.
For example, landlords who have never evicted a tenant before could save themselves a lot of hassle by consulting with an attorney for advice on how to navigate local courts. Likewise, experienced landlords might benefit from hiring an attorney to handle evictions with unusual facts or where the tenants dispute the landlord’s reasons for terminating the tenancy. Landlords evicting tenants who are protected by rent control or eviction protection laws should realize that these tenants have a heightened incentive to win, and will most likely hire their own counsel. Whenever a tenant appears with an attorney, rent control or not, the landlord should strongly consider “lawyering up” as well.
Filing an Eviction Lawsuit
Eviction lawsuits go by many names: Depending on the state, the official title of an eviction suit might be:
- an unlawful detainer suit
- a dispossessory proceeding, or
- a forcible entry and detainer suit.
No matter the name, landlords must take the following steps before a court can issue an eviction order.
1. Find the right court
In most states, eviction lawsuits are handled in local trial courts (often called “municipal,” “county,” or “justice” courts), or in small claims courts. A few states and cities have their own landlord-tenant courts dedicated to hearing eviction matters. If you’re not sure what court handles eviction matters in your area, call the clerk of the court near you or visit the court’s website—most contain information about the types of cases the court can hear.
2. File the complaint
After locating the correct court, landlords can begin the lawsuit by filing a legal document called a complaint (in a few states, landlords might need to file an affidavit instead). Many courts provide form complaints online or at the clerk’s office. In the complaint, the landlord outlines the reasons for terminating the tenancy, and explains why the tenant should be evicted. Depending on the nature of the case, the landlord might have to attach a copy of the written lease, or explain why there isn’t one available. If allowed by law, the landlord might also demand back rent, damages, and the costs associated with filing the suit, including attorneys’ fees.
Although most eviction lawsuits are decided by a judge without a jury, landlords who wish to have the matter decided by a jury usually must state this in the complaint (and pay an additional fee). A jury trial won’t be an option for cases filed in most small claims courts, though.
3. Serve the tenants
Upon receiving the complaint, the clerk assigns the case a court date and issues a summons. The summons is the official notice to the tenants, letting them know their landlord is suing to evict them. The summons also requires the tenants to respond in writing within a certain amount of time and appear in court on the designated date. The landlord must serve the tenants with the complaint and summons. Failure to properly fill out or serve the complaint and summons can result in the court dismissing the case.
4. Wait for the tenants’ response
Once served with the summons and complaint, the tenants can file a response to the landlord’s complaint. Most of the time, the response will be called an “answer.” Many courts provide form answers online or at the clerk’s office. If the court allows and the landlord hasn’t already requested it, the tenants may opt for a jury trial in their answer (and pay an additional fee).
If the tenants don’t file an answer to the complaint, the court might enter a default judgment against the tenants (see below). Even when tenants don’t answer, though, the landlord should always show up for the court date unless the court orders otherwise. Courts sometimes accept late answers or even forgive the tenants’ failure to file if they appear in person on the court date (although this is rare and tenants should always attempt to respond on or before the deadline in the summons). When landlords don’t show up because they think the tenants will be a no-show, but the tenants do appear, the court might simply dismiss the case or even enter a judgment in favor of the tenants.
The Court Date
In court, both the landlord and the tenants will have the opportunity to present their version of what’s going on. The landlord will have to provide evidence supporting the termination of the tenancy and explain why the tenant should be evicted. The tenants can offer one or more defenses to eviction, perhaps by demonstrating that the landlord doesn’t actually have a valid reason to evict, or that the landlord didn’t follow proper termination procedures or court filing rules.
The formality and scope of the first court date varies among courts. Some courts require the parties to meet with a mediator in an attempt to work out an agreement before going to trial. Occasionally, landlords or tenants file motions (written arguments) that precede the trial date and attempt to knock the case out of court without having to go through a trial. Most of the time, the judge overseeing the trial will decide the case on the spot or within a day or two of the hearing. When a jury is involved, though, the process can take much longer, as the jury must deliberate and the judge must approve its decision before issuing the final judgment.
What If the Tenant’s a No-Show?
When tenants don’t answer the complaint and don’t appear on the court date, the landlord can request the court to enter a default judgment. A default judgment is an order by the court finding in favor of the landlord based solely on the fact that the tenants didn’t respond.
Most courts will grant the landlord’s request for default judgment so long as the landlord appears and has properly terminated the tenancy and served the summons. The judgment will give the landlord the right to have law enforcement remove the tenants and possibly award the landlord back rent, attorneys’ fees, and court costs.
Even when the tenants move out before the court date, the landlord should appear in court. Aside from the fact that the landlord needs to finalize the lawsuit and obtain the default judgment, there’s always a chance that the tenants will show up. If the tenants appear but the landlord’s a no-show, the court could actually find in the tenants’ favor and order the landlord to pay the tenants’ costs and attorneys’ fees.
The Court’s Decision
When a landlord wins an eviction suit, the judge issues an order declaring that the landlord has the right to possession, and might order the tenants to pay back rent, court costs, or other expenses. The court will also issue to the landlord the writ of possession (called a judgment for possession or warrant for removal in some areas)—an order directing law enforcement to physically remove the tenants. The landlord can later deliver the writ of possession to the proper law enforcement office to initiate physical removal. In some areas, courts issue the writ immediately; in others, courts must wait before issuing a writ (usually no more than 48 hours).
When tenants win an eviction suit, they have the right to remain on the property. Depending on the terms in the lease and state law, the court might order the landlord to pay the tenants’ court costs and attorneys’ fees. The court might also order the landlord to pay the tenants an additional amount if it determines the landlord acted illegally—for example, if the landlord terminated the tenancy for discriminatory or retaliatory reasons.
Eviction
The landlord must take the order of possession to the local law enforcement office that carries out the physical eviction—usually the sheriff’s or marshal’s office. For a fee, an officer posts a notice at the rental telling the tenants to leave within a certain amount of time (usually between 48 hours and 2 weeks). If the tenants aren’t gone when the officer returns, the officer will physically remove the tenants.
The procedures for physical evictions vary. Many law enforcement agencies require landlords to be present. If a landlord doesn’t comply with local and state requirements, law enforcement will most likely abandon the eviction, and the landlord will have to pay another fee to begin the process again.