April 23rd, 2023
April 23rd, 2023
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4.1 - 10 votes
Evictions can be a convoluted and complicated process as there are many misconceptions about what the landlord can and cannot do related to this process. An eviction must always start with the landlord giving the tenant an eviction notice. An eviction notice, as scary as it is for a tenant to receive, is not the eviction itself. When a tenant is served with an eviction notice, they still have rights and options. The eviction notice may be presented as a legal document, but it must meet strict requirements before a court will consider it valid. This guide discusses the intricacies of eviction notices and provides a brief overview of the eviction process. As with all landlord/tenant law, the laws surrounding eviction are highly state-specific. After providing an eviction notice, a landlord should consult with a lawyer in their state to find out more about the laws in their jurisdiction if they decide to move forward by bringing an eviction action in court.
It is important to understand the purpose of an eviction and the factors which might contribute to a tenant being evicted. Simply put, an eviction is the legal process by which a landlord removes a tenant from a rental property. Many evictions occur because the tenant has not paid rent or is habitually late in paying the rent. A tenant may also be evicted for issues such as damaging the property, causing a disturbance to the other neighbors, or conducting illegal activities in the rental property. The full host of reasons why a tenant may be evicted are generally outlined in their lease.
Eviction laws vary state by state, but an eviction typically does not come as a surprise. States require that the landlord give notice to the tenant so that the tenant has a chance to clear up the issue or leave the rental property before the court process of eviction can begin. A tenant might choose to move out upon receiving an eviction notice as this would help them avoid having an eviction on their rental history and credit report, as long as the landlord does not file in court and the tenant pays any rent or fees that are still due.
An eviction notice is meant to inform tenants that the legal process of eviction is about to begin if the landlord's grievance cannot be resolved. Typically, the tenant is expected to respond quickly, from 3-5 days for issue-specific notices (i.e. nonpayment of rent, illegal activity on the premises, etc.). If the eviction is not based on a particular grievance, such as a failure to pay rent, there is generally a much longer deadline to respond -- up to thirty to sixty days.
If the issue is resolved and legal requirements are adhered to quickly and competently, a tenant may be able to delay the eviction for weeks or even months. It is even possible for the tenant to prevent the eviction from happening altogether.
In any jurisdiction, an eviction notice must provide all the information a tenant may need to understand the landlord's reason for eviction, as well as all of the information they need to respond within the required time frame, in order to be valid. Legal eviction processes begin only if a tenant does not use that information and respond appropriately before the deadline. Courts determine what kind of information is necessary and how it must be presented.
The landlord's exact grievance must be stated on the eviction notice itself, along with instructions on how to fix the problem within the time limit. Often, these grievances involve accusations of a tenant breaking the terms of the lease. Broken lease terms generally include failure to pay rent, disturbing neighbors, engaging in illegal activity, or making frivolous complaints. The notice should also include a specific time frame by when the tenant must respond to the notice and a deadline by when they must correct the issue.
There are many different types of eviction notices that cover different reasons for the potential eviction.
If a tenant does not pay rent when it is due, a landlord can serve a notice, giving the tenant some time by which they must pay the amount owed, plus any associated late fees (as described in the original signed rental agreement), or move out. The time period given is usually 3-5 days. If the tenant pays the full amount in the given time, there can be no eviction on this notice. The landlord must start all over again with a new notice and a new time period if there are other violations that need resolution.
In some states, a landlord can give a tenant a notice to fix some violation of their rental agreement. Violations could be a junk car being kept in the front yard, a pet that is not allowed by the lease, or more people living in the unit than is allowed in the rental agreement. This notice must state the amount of time the tenant has to correct the issue. For example, state law may give the tenant 5 or 10 days. As long as the tenant corrects the violation in time, there can be no eviction on the notice.
In some states, a landlord may give a notice for a tenant to move out without any possibility of or chance to correct an issue. In most cases, this can only be done if the tenant has seriously violated their rental agreement. For instance, a tenant who is repeatedly late with their rent payments, causes damage to the rental property, threatens the health or safety of the property or other tenants, or grows or sells drugs in the rental property could be subject to receiving a Notice to Quit. The time given to move out depends on state law. If the tenant is shown to have done what the landlord is accusing them of, they must move out or be formally evicted.
In most states, a landlord can give an eviction notice for a tenant to move without giving any reason. The time allowed under state law for such a notice is usually thirty or sixty days, but may be as short as twenty days or as long as ninety days. There may be different time periods if the tenant has lived in the unit for a long period of time or is a senior citizen or has a disability.
The requirements also vary if the tenant is receiving federal housing assistance or if the reason for the eviction is that the property is being converted into a condo. Some states or cities require landlords to pay relocation expenses to senior citizens or disabled tenants or for units being converted to condos.
A landlord cannot give this kind of notice to a tenant with a lease until the initial lease period is over. They also can't give this sort of notice for unlawful discriminatory reasons or as retaliation against a tenant (e.g. a tenant who has reported violations or insisted on repairs to which they are legally entitled to receive). This type of notice may also not be allowed in rent-controlled buildings or buildings protected by state or local rent stabilization laws.
When a tenant receives an eviction notice, the first and most important thing they must do is read the entire eviction notice carefully. Although they are not very long, they are subject to a long list of legal requirements. After receiving the notice, the tenant must respond in a timely manner. The typical 30-day eviction notice, as the name suggests, requires a response within 30 days of receiving it. State and local jurisdiction laws, as well as the specific circumstances involved, can also impact how long a tenant has to respond. It will indicate at the beginning of the notice the exact time frames. Deadlines to respond are not upheld in court if the notice does not clearly communicate them to the tenant.
Though most landlords write their own eviction notices, they frequently hire legal counsel to assist in the full eviction process. It is not required that a tenant hire an attorney, however, as many tenants' rights and housing lawyers offer legal aid clinics and other free or low-cost legal assistance services.
Providing an eviction notice is just the first step in the legal process of eviction. When it comes to eviction, landlords must follow applicable state and local laws. Even if a tenant is late paying rent or has otherwise violated their lease, landlords usually have a duty to follow the process, including legally ending the tenancy before suing to evict the tenant.
If a landlord wishes to evict a tenant, they must follow these steps:
1. Inform the tenant in writing via an eviction notice: If a tenant has breached their lease, the tenant must be informed of the breach in writing through an eviction notice or a notice of lease violation sent via certified mail. In cases where the violation of the lease is late payment of rent, a late rent notice can also be used. A breach of the lease means the tenant has violated important lease terms, such as the requirement to pay rent or to refrain from being a nuisance to their neighbors. This letter must include a detailed description of the breach and the portion of the lease that refers to the provision being breached. The notice must also include information about how the tenant can correct the breach and a deadline by which the breach must be corrected.
2. File for eviction in court: If direct communication with the tenant fails to bring about necessary improvement to the situation and the tenant fails to vacate the premises of their own volition, the landlord can then file for eviction. To do this, the landlord must go to court to file the paperwork for eviction. The landlord must provide information including the tenant's name and rental address, a copy of the signed lease, the specific portion of the lease that has been breached, documentation or proof of the breach.
3. Wait for the court to serve the tenant: Once the landlord has filed for eviction, they must then wait for the court to officially serve the tenant with eviction papers and inform the tenant of a hearing date to address the eviction.
4. Use official channels for physical eviction: If the eviction is granted, then the landlord must give the eviction court documents to the local sheriff's office who then posts for eviction. The landlord still may not just change the locks and must follow proper procedures to avoid legal trouble.
Evictions can be a lengthy and complicated process. However, knowing how to write an airtight eviction notice or how to react when one receives such a notice can smooth the process considerably.
About the Author: Malissa Durham is a Legal Templates Programmer and Attorney at Wonder.Legal and is based in the U.S.A.