The term “eviction” refers to the legal process in which a court can order the removal of a tenant from a rented apartment or home based on a request from their landlord. The landlord must have a justified and specific reason as to why the tenant needs to be evicted.
There are many different reasons for why the landlord may want to evict a tenant from a rental property, including:
- If the tenant has stopped paying rent for a certain amount of time;
- When the tenant or their guests have caused substantial damage to the rental property;
- If the tenant has breached the terms of their lease or rental agreement (e.g., smoking in a non-smoking building or keeping pets despite no-pet conditions in the lease); and
- When the tenant does not move out after their lease has expired and is now considered a squatter.
Although most eviction actions occur between a tenant and a landlord who are associated with a residential property site (e.g., a home or apartment building), the process can be used to remove tenants from rented commercial buildings as well (e.g., business offices).
However, it is important to note that the eviction process generally involves many steps that have strict legal requirements for both the tenant and the landlord. These requirements are governed by specific state laws, so they will vary depending on the jurisdiction or where the eviction takes place.
In addition, while the law traditionally supported landlords when it came to evictions, the more modern trend is for courts to side with the tenants. Tenants also have a number of defenses they can use against a landlord’s eviction notice, which can help prove that the eviction is unfair or that there is no reason to evict them in the first place.
Finally, given the effect that an eviction action can have on both parties (e.g., the tenant can either lose their home or the landlord may be out thousands of dollars), it is in both parties’ best interest to hire a real estate attorney for further assistance with these matters.
What is the Process for Eviction?
As previously mentioned, the eviction process is governed primarily by state laws. Thus, every state will have their own separate requirements and procedures for eviction actions.
Generally speaking, however, most states have some version of the format below in place in order to prove that the landlord followed proper protocols for eviction, which includes:
- First, the tenant must have violated the terms of the lease in some way (e.g., breaking local housing ordinances or failing to pay rent for several months).
- At this point, the landlord can either speak with the tenant directly in hopes that this will clear up the issue and if it does not, then they can move on to the next step.
- If the landlord has a valid reason for eviction and the tenant refuses to comply with any requests to stop their illegal conduct, then the landlord can send them a formal eviction notice. Basically, an eviction notice or a notice to vacate is a letter stating what the tenant did, whether they can fix it, and how long they have to move out (usually 3 to 30 days depending on the reason and rules of the jurisdiction).
- Many people will usually try and fix their mistake once they receive a formal eviction letter. If they continue to ignore the landlord’s requests, then the landlord will now be permitted to file the eviction notice with a court.
- Once the eviction notice is filed with a local court, then the clerk will send a summons to the tenant and also provide the landlord with a court date for a hearing.
- At this stage, both the landlord and the tenant should be collecting evidence to support their arguments for and against the eviction at the hearing.
- If a court rules in favor of the landlord, then the tenant will have a certain amount of days to leave the premises. If they have not left after the time period has expired, then the landlord may contact local law enforcement to have the tenant arrested and removed. The tenant also has the right to appeal the ruling against them (usually about 7 days).
- In contrast, if the tenant wins the hearing, then they will continue to enjoy the right to remain on their property. The judge may also order the landlord to pay the tenant’s legal fees and other damages that the tenant may have suffered due to the eviction action.
Additionally, here are several important tips to keep in mind about eviction:
- It is highly recommended that both parties appear at the court hearing. Not appearing before the court can result in serious legal consequences.
- Depending on the state, the court may require the parties to attend a mediation session first before being heard by a court. This is to encourage the parties to cooperatively come to an agreement.
- If the tenant has good reason to defend against the eviction notice, then they should hire a qualified attorney to argue on their behalf in court. This can help ensure a more successful outcome due to the legal procedures involved and certain evidence that the tenant may not know to gather themselves.
- In the event that the landlord wins, they may file a separate action in small claims court to collect back-due rent.
How Can I Stop an Eviction?
If it can be helped, no one genuinely wants to go through the eviction process. It is a stressful and upsetting situation that can result in someone losing their home. Thus, the following is a list of some ways that the parties may be able to stop an eviction from occurring:
- The landlord and tenant should come to their own agreement. This should happen either before the landlord sends a formal eviction notice or the tenant should reach out to the landlord immediately after they receive it. This is especially true if the reason for the eviction is based on missing rent payments. The parties should attempt to work it out amongst themselves, such as by compromising on a new payment plan, etc.
- If the tenant simply forgot to pay rent or is now in a situation where they are able to pay it, then the tenant should alert the landlord and make the payments. This can prevent the action from going to court since the reason for the eviction will no longer exist.
- If they cannot do it on their own, then the parties should schedule a mediation session before going to court on the matter.
- A tenant can also stop an eviction if they have a valid legal defense against the claim. In this case, the tenant should retain an attorney to argue on their behalf during the proceeding.
In the event that there is a temporary ban on evictions in a specific jurisdiction, then a landlord will be prohibited from evicting a tenant by law. In other words, any eviction action taken by the landlord during this time will be considered illegal. However, this does not mean that a tenant should stop paying their rent if possible.
Lastly, although these types of bans are extremely rare and will usually only be put in place temporarily or during emergency situations, the ban will apply to both residential and commercial rental properties until a local governmental official or agency decides to lift it.
Can a Landlord Throw Away My Belongings?
A landlord is not allowed to throw away a tenant’s belongings before they have received an official court ruling. When a landlord partakes in this conduct, such as removing the tenant’s personal property or changing the locks to their apartment, it is known as a “self-help” eviction. These types of evictions are illegal in all states.
The only time the landlord will be permitted to throw away a tenant’s personal property is when the court has ordered an eviction and the tenant refuses to leave. The landlord can alert local law enforcement who will then remove the tenant from the rental property and can place their possessions on the street.
If the landlord removes a tenant’s personal property before the eviction order is granted, then the tenant will have grounds to sue for illegal possession of property and any associated damages done to the property that were caused by the landlord’s illegal actions.
Are There Any Defenses Against Eviction?
As previously discussed, depending on the state that the eviction is occurring in, a tenant may have several defenses available to argue against an eviction action. Some of these defenses may include that:
- The landlord is attempting to evict a tenant based on retaliation towards their request for repairs or maintenance;
- A landlord may also be retaliating against the fact the tenant called their local health or building code inspectors about the conditions of the residence;
- When the landlord has violated the implied warranty of habitability. This can occur when a landlord does nothing to keep a rental unit from falling into bad conditions, such as mold accumulation or pests and/or rodents;
- If the landlord is behaving in a discriminatory way towards tenants, such as evicting them due to their race or religion;
- The tenant received improper notice of the eviction. Again, the eviction process will vary according to state laws, but landlords generally need to properly inform tenants about the fact that they are at risk of potentially facing an eviction action; and
- If the landlord has accepted some portion of the tenant’s rent already, this action may serve as a waiver to an eviction notice.
Can I Find a Lawyer to Fight My Eviction for Free?
Evictions are one of the only areas of law where it is rare to find an attorney who will take on an eviction case for free. There are many moving parts involved in the eviction process and even more complex laws and research that the attorney will have to focus on, meaning it can take up a lot of their time and costs to complete one eviction case.
Although a tenant may not be able to hire a lawyer for free, they can gain access to free resources and information about eviction notices and the process. They can find these resources by conducting a search online, such as “free eviction help” along with the state and/or city in which they live.
In addition, there are also many defense fund organizations as well as community outreach programs that will help tenants fight against their eviction claims, including local government agencies and general resource centers.
These types of programs and organizations are usually the best way to access free help since many of them are willing to provide free information about the process and usually have volunteer representatives who will walk tenants through filing the proper paperwork.
Do I Need a Lawyer for an Eviction?
As discussed above, the eviction process involves many complex procedures and legal requirements. They can also be a very emotional and stressful life experience for both parties. Thus, in order to minimize the amount of pressure and challenges that an eviction action can cause, you may want to contact a local real estate lawyer for further assistance.
If you are a tenant, an attorney can help determine whether there are any defenses available that you can use against the eviction claim. They can also provide information about the laws in your area, what you can expect if you lose the hearing, assist you with an appeal if necessary, and give you guidance regarding the ways you may be able to stop the eviction before it happens.
Alternatively, if you are a landlord commencing the eviction action, then an attorney can make sure that you have followed the proper procedures for eviction in your area and help you defend against an appeal. They also can explain any rights you have as the property owner.
Additionally, do not ignore your ability to obtain free local resources. The organizations and agencies mentioned in the article can be very useful for gaining advice about evictions, can provide you with the proper forms, and will often have volunteers who are willing to guide you through the court filing process.
Working with both free resources and hiring an attorney when necessary can help lead you towards a successful outcome or at the very least, a working compromise that may prevent the eviction from happening.