Landlord/Tenant – Eviction Issues

It is important for tenants to pay attention to the eviction procedures in the agreement and terms. No one wants to be unjustly evicted. Most states have laws that provide certain procedures to ensure that each tenant is accorded due process of law, so that they do not come home and find someone else living in their unit with their belongs on the street.

Keep in mind that landlord-tenant law is statutory in nature and each state has different laws, procedures and time limitations. Your local Plan Attorney will be extremely helpful if you want to evict a tenant or are being evicted and wish to contest the eviction. These laws are made more complicated by local Rent Control Ordinances.

Basic Procedures for Eviction:            

  • Three-Day Notice – Generally, a three-day notice is given to any tenant who has not paid their full rent in a timely fashion
    • When the notice is personally served, the tenant usually has 3 days to pay the rent or the landlord will force an eviction
    • If rent is paid, will halt any eviction proceedings based only on non-payment of rent
    • Must be personally served or must be contemplated to be delivered to you to be effective
    • What you should be careful of in this area is a landlord who may hire an agent to serve the Notice and rely upon the representations of such an agent that you were personally served. You may be in the middle of eviction procedures before you have a chance to prove that you were not served properly.
  • Thirty-Day Notice - any tenant or landlord who does not have a written lease for a specified time period generally is presumed to have a 30-day tenancy.
    • Either a landlord or tenant can give thirty days’ notice to end a lease (Rent Ordinances may cause restrictions for landlords)
    • Given in writing and personally handed to the other party
    • Once given, the tenant must move out within 30 days or may have to pay extra charges, damages or rent
  • Summons & Complaint
    • If a tenant has not moved out after either of the above notices, the landlord must prepare a Summons and Complaint and have them personally served to the tenant
    • If the landlord has made repeated attempts to serve the tenant and has been unsuccessful, he/she may utilize a procedure called substituted service, usually consisting of: (1) repeated attempts, (2) posting the Summons and Complaint on the door of the premises, and (3) sending a copy of the Summons and Complaint to the tenant, at the premises, via First Class mail.
    • Once served, the tenant has only a certain number of days to file a formal Answer with the clerk of the court listed on the Complaint.
      • Answer must specify what allegations in the Complaint are denied, and set forth any Affirmative Defenses
      • If not filed within the time period, the landlord can obtain a default at a hearing
        • Default (in this example) means the tenant must move, and the default will usually award the landlord any monetary damages he/she can prove to the court. Such a default can become a judgment against the tenant, and the landlord can pursue the tenant for the money, for up to 10 years.
        • Defaulting is not a good idea and can affect your credit, cause you to have problems to rent in other places, and subject you to a judgment for actual money damages
      • Filing an Answer means you will contest the proceedings

A Plan Attorney may help because there are unfamiliar rules because of state or local laws

Posted in: Contracts