What is an Eviction?
An eviction is the physical removal of the tenant and his possessions from his rented home or apartment. Eviction can also be used against commercial tenants.
How Does a Landlord Evict a Tenant?
The landlord must provide the tenant with adequate written notice in a specified way and form, which varies by state. If the tenant does not move, the landlord must go to court and prove the tenant did something wrong that justified ending the tenancy.
What Should the Eviction Notice Say?
State laws set out very detailed requirements for landlords who want to end a tenancy. Different types of notices are often required for different types of situations.
There are three basic types of eviction notices. Note that the exact names and days to respond of each notice may differ from state to state.
- Pay or Quit – the notice means that the tenant must either pay rent owed or leave the property. The tenant has five days (including weekends, but not holidays) to respond. If there is no response, the landlord wins a default judgment and the eviction will occur.
- Cure or Quit – the notice means that the tenant has breached the lease in a way other than through nonpayment. The tenant must fix the breach somehow or leave. The tenant has three days (including weekends, but not holidays) to respond or the landlord will win a default judgment and the eviction will occur.
- Unconditional Quit – the landlord can order that the tenants leave for other reasons, such as the landlord’s withdrawal from the rental business, the landlord’s desire to house a close relative instead, or remodeling. The tenant typically has ninety days to move out. If the landlord is renovating the building, then the tenant has the right to return after modifications are completed.
Can a Landlord Throw the Tenant and his Belongings out on the Street?
No. The tenant has a few days to move his things and self out of the space. After that, the police can come and forcibly remove the tenant.
What Happens To My Property If the Eviction Occurs When I’m Not Home?
The landlord has a number of options regarding property after the tenant has been evicted. The landlord can retain and store the property for a fee. The landlord can move the property elsewhere in the building.
The landlord may not destroy the property nor can the landlord give away the property. If the landlord does so, the tenant can bring a claim for trespass to chattel or conversion. The only exception is if the tenant abandons his or her personal property.
What Defenses Does a Tenant Have Against Eviction?
There are a number of defenses a tenant can use to delay or stop an eviction. These include:
- Warranty of habitability – The landlord has the duty to make sure that the property rented out is livable. If the rented unit is infested with rodents, has mold, cracks in the wall, etc., then the tenant can delay the eviction or have a portion of nonpaid rent deducted.
- Discrimination – The landlord cannot evict tenants based on certain traits, such as race, gender, religion, color, national origin, or family status. The last category refers to having or in the process of having children.
- Retaliation – The landlord cannot evict a tenant in order to punish a tenant for taking legal action against the tenant. This includes demanding repairs, calling building inspectors, or suing the landlord for another matter.
- Quiet Enjoyment – The landlord cannot, by action or inaction, prevent the tenant from fully using the property. This includes the landlord trespassing into the rented space or the landlord failing to take precautions against criminal activity if the landlord has knowledge that such activity is taking place around the property.
- Waiver of Notice – The landlord, by his, her, or its own action, voids the written notice or lawsuit given to the tenant. For example, after the notice is given, the landlord tells the tenant that the tenant can pay the rent late. The action need not be oral. For example, if the landlord accepts rent after the eviction process has begun, then the landlord may have inadvertently halted the eviction process and reaccepted the tenant.
- Laches – This legal term means that the landlord cannot bring a claim if the landlord delayed in bringing the claim for a significant period of time. For example, the landlord cannot seek the eviction of the tenant for rent unpaid a year ago.
Should I Consult a Lawyer about an Eviction?
Landlord-tenant law is very complicated and constantly undergoing changes. An experienced landlord-tenant attorney can help you identify the law that applies to you and represent you in court. A landlord-tenant lawyer can also review the terms of a lease and help you understand your duties and responsibilities.
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Last Modified: 02-21-2013 11:28 AM PST