Process for Eviction
In order to evict a tenant who has violated the terms of the lease, such as continuing to live on the premises without paying rent, the landlord is required to follow a precise legal procedure. The specifics vary from state to state, but generally all laws require:
- a legal purpose for eviction
- notice to the tenant
- a trial before a judge
- an order of eviction
- removal of the tenant
Notice to Vacate
Typically, laws require between a 3- and 10-day written notice to the tenant that the landlord is seeking to evict him. The notice may be called the "notice to vacate," the "notice to quit," or some other term. Some laws allow the landlord to notify the tenant himself; others require that law enforcement personnel, usually a sheriff’s deputy, "serve" the tenant with notice.
If a deputy must serve the notice to vacate, the court clerk typically prepares the notice for a fee. The clerk then sends the notice to the sheriff’s office for service. The sheriff can either give the notice to the tenant personally or post it on the door of the rental unit.
Once the notice is served, the tenant has a short time period to pay the past due rent (if that is the issue) or to vacate the premises. For example, if a tenant is served with a 5-day notice to vacate on a Monday morning, he must pay the rent that is due or vacate by Saturday morning.
TIP: Holidays and weekends are included in the tenant’s time to pay or vacate before the deadline. In the example above, the tenant must vacate on a Saturday. Although Saturday is part of the weekend, it still counts as a day in the notice period. The tenant does not get to skip Saturday and Sunday and wait until Monday to pay or vacate.
TIP: The sheriff’s office does not serve notices and other legal papers on the weekends or holidays. If you are a landlord, keep in mind that there may be a delay before your tenant gets the notice to vacate during holiday periods.
My landlord gave me a 24-hour notice to vacate and I immediately paid the past due rent. Can I still be evicted from my apartment?
No. You did exactly what the landlord wanted to accomplish by giving you the notice—you paid the rent. The landlord has no basis for an eviction. As long as you continue to pay the rent and comply with other provisions of the lease agreement, you can stay in your apartment until the lease ends.
The landlord gave my teenaged daughter a notice to vacate. Is this valid?
Yes, in some cases. Laws allow the notice to vacate to be given to other residents of the apartment if they are a certain age. You need to check the law in your state concerning eviction notices. In Texas, for example, if your daughter was under 16 years old, the landlord’s notice to vacate has not been properly given to you.
The law in my state gives tenants 3 days to vacate but my landlord has given me a 24-hour notice to vacate. Is this legal?
In some jurisdictions, if your lease specifically provides for only a 24-hour notice, then state law does not apply. Under the lease, the landlord is acting legally and you have 24 hours to vacate the premises or to remedy the issue that prompted the notice.
I gave my tenant a notice to vacate but she has not left the apartment. Can I change the locks and move her furniture and other belongings out?
No. You must file an eviction lawsuit and obtain a court order requiring the tenant to leave.
TIP: If your lease gives you a landlord’s lien, you do not need to go to court to move out the tenant’s belongings.
I received a notice to vacate. Do I have to move by the deadline?
No. Your landlord must obtain an order from the court. Until he has the order, he cannot forcibly remove you or your belongings (unless he has a landlord’s lien) from the apartment.
Once the landlord has given the tenant a notice to vacate, or the notice has been served, and the deadline passes without the tenant paying the past due rent or vacating, the landlord will file a lawsuit to evict the tenant. The lawsuit may be termed an "eviction suit," a "forcible entry and detainer suit (FED)," or a "dispossession suit." In such lawsuits, the landlord is requesting a judicial order allowing him to remove the tenant, the occupants and any property belonging to them that is on the premises
Once the lawsuit is filed, the tenant must be notified of the filing. This is accomplished by serving him with a copy. The tenant has the right to respond or "answer" the landlord’s suit. The deadline for a response (called the "answer date") begins to run once the tenant is served. Typically, the response time is short—about 10 days.
Tenant’s Deadline to Respond
The tenant’s answer must be in writing and filed by the deadline or he automatically loses the case. Once the tenant files his answer, the court sets a trial date for the eviction case. The tenant must be notified of the time and date of the trial by the court. He has the right to appear before the court at trial and show cause as to why he should not be evicted.
TIP: Call the court clerk and ask if there are forms available for answering an eviction lawsuit.
TIP: The tenant’s answer date (the deadline to respond to the lawsuit) may also be the date the judge plans to hear the case. If you have been served with an eviction or forcible entry and detainer suit, call the court clerk and ask if the judge will hear the case on the answer date. If the answer is "no," you need only be concerned with getting a written response to the court by the answer date. If the judge is going to hear the case, you must be prepared to defend yourself against the landlord’s contention that he is entitled to evict you.
The answer should include a statement that the tenant "denies all the claims set out in the lawsuit." Additionally, a counterclaim against the landlord can be included. A counterclaim is an allegation that the landlord owes the tenant an amount of money. Typically, the tenant’s counterclaim is for repair expenses that the landlord has refused to cover. For example, if the toilet did not flush and the tenant was forced to call a plumber, the tenant can counterclaim for the cost of the plumber.
TIP: You will only win on your counterclaims for repair costs if the landlord knew he needed to make the repairs and refused. At a trial, you must have proof of notice to the landlord in the form of a written demand, or a witness that can testify that the landlord knew about the problem.
I have been served with a lawsuit for eviction. Is it too late to settle with the landlord?
No. You can settle any time before the judge makes her final ruling, even during the trial itself.
TIP: If you and the landlord came to an agreement before the answer was due, you can proceed to file an answer denying the claims in the lawsuit. After denying the claims, include a description of the settlement. For example, "The landlord and I have agreed to settle this case and a trial is not necessary." Then ask the court to dismiss the case.
If my landlord and I have settled the eviction lawsuit, do I need a written settlement agreement?
Yes, otherwise you have no proof of your agreement with the landlord. Additionally, if the court has not dismissed the lawsuit, the landlord can request a trial date at any time.
What happens if I do not respond to or answer the eviction lawsuit?
You automatically lose the lawsuit and your landlord may be entitled to possession of the premises within 48 hours or less.
The last revision date for this article was November 1, 2011.