Landlord and Tenant: Eviction Lawsuits
What to do when you end up in court.
Causes for eviction
Evictions occur after a tenant has been asked to move out and has refused to do so. With a month-to-month tenancy, a landlord ostensibly needs no reason to give thirty days' notice, since, by the very terms of the arrangement, either party can terminate the agreement on thirty days' notice. It is when a tenant has not moved on the thirty-first day that an eviction lawsuit is necessary. Eviction is a process that utilizes the assistance of the courts to put the landlord back in possession of the dwelling.
Clarence rented an apartment from Bruce and had a year-long lease. Bruce wanted to rent the unit to his brother, and therefore gave Clarence thirty days' notice to vacate. Since Clarence had a lease, and since he knew that Bruce could not legally give him thirty days' notice, Clarence did nothing. When Bruce tried to evict Clarence, the judge threw the case out of court and made Bruce pay all of Clarence's legal bills.
The critical question to be answered by the courts is whether a landlord has a justifiable reason to possess the property again. If a tenant has an ongoing lease and has done nothing wrong, a landlord has no right to possess the property until the lease is up. A landlord like Bruce will lose his eviction lawsuit because a court will decide that he has no justifiable reason to gain possession of the property again. His tenant did nothing wrong.
So, the issue is this: has the tenant given the landlord a legally justifiable reason for taking the property back? A tenant who has properly withheld a portion of her rent to fix a broken shower has not given her landlord just cause for an eviction. A tenant who has withheld a portion of her rent because she thinks her landlord charges too much rent has in fact given her landlord just cause for eviction. In the former case, the law allows for repair and deduct. In the latter, there is no right to unilateral, unjustifiable rent withholding. Is the law on your side? That is the question.
Just cause for terminating a tenancy includes all of the following: nonpayment of rent, expiration of the term, the tenant is disturbing other tenants, the tenant has damaged the property, the tenant has violated a term of the agreement (e.g., a no-pets clause), or the tenant is breaking the law in the unit. Any one of these would likely result in a victory for the landlord.
Once it has been established that a landlord has a valid reason to evict a tenant, usually, but not necessarily, for nonpayment of rent, he does so by initiating a lawsuit, usually called an unlawful detainer or a forcible entry and detainer action. Unlawful detainer actions are expedited court processes, typically taking anywhere from one week to two months, from start to finish.
Evicting someone is not the type of thing one should attempt to do without the assistance of a professional. Eviction services run by paralegals are available at a small fee, but you get what you pay for. Paralegals are not attorneys and cannot give legal advice. They also cannot go to court with you. If you can afford it, it is much smarter to hire an attorney.
The eviction begins when the landlord, or his attorney, files a complaint against the tenant. The complaint identifies the parties, states the reasons for the action, and requests that the tenant be evicted.
After the complaint is filed (by the party called the plaintiff), it must be served, along with the summons, on the tenant. Although each state has different rules, service is usually accomplished by either (1) personal delivery by a sheriff or registered process server, (2) tacking the summons and complaint to the door of the rental, or (3) certified mail. Since improper service constitutes grounds to dispute the eviction, be sure the tenant is served properly.
In an unlawful detainer action, the person being sued (named as the defendant) has a very short amount of time to file a response with the court and the other side, and some states do not even require a formal response. Tenants are advised to read the summons carefully; it will state whether a formal written response is required, and, if so, by when. If a written response is required and the tenant fails to respond in time, then the landlord can save the time and expense of a trial by filing for a default judgment. By defaulting, a tenant forfeits his right to go to trial. The landlord wins automatically.
If the tenant does respond to the suit, it will go to trial in a very short amount of time. A landlord may find his tenant trying to forestall an eviction trial, and thereby stay in the unit even longer, by filing some sort of motion with the court. If a landlord has acted properly, then such a motion is nothing but a delaying tactic.
Eviction trials vary depending on state law. Some states allow for jury trials, others do not. Some eviction trials are notoriously quick, lasting no more than fifteen minutes or so; others may last half a day. The issues are whether the landlord acted properly, filed suit properly, gave notice and served the tenant properly, and whether he has a right to retake the unit. Similarly, the judge will want to know why the tenant did whatever he did, and whether he had any justification for his actions or inactions.
Again, if you can afford an attorney, it is best to hire one. Trials are complicated, and if you do not know what you are doing, the judge will quickly stop you. Judges do not suffer fools lightly.
Whether or not you have an attorney, you still must act appropriately in court. How you behave will have a significant impact on the outcome of your trial. Dress nicely. Exercise decorum and self-restraint. Do not overreact. Do not argue with your tenant or landlord. Present yourself well, and speak only to the judge. Do not chew gum. Be on time. Do not whisper. Be respectful.
The key to being believed when testifying is to be honest. Your testimony must be credible, make sense, and have the ring of truth to it. Judges instinctively know when someone is lying. Speak up. Be calm. Do not memorize answers. Listen to the question, and answer only the question asked. If you do not understand a question, ask for it to be repeated. Do not avoid the truth, even though it may be unflattering. Be clear, concise, and honest.
In order to win, not only must you act appropriately but you must also have the law on your side. If you are a tenant and have not paid your rent, you had better have a legal justification for your inaction, such as repairing and deducting. You also need to come to court well organized, with documents and witnesses who can help you prove your case. The party who comes in unorganized, ranting and raving, with no proof, loses.
Assuming, not illogically, that the landlord won the eviction trial, the tenant must usually move within a matter of days. In some states, tenants have one day to move; in others, twenty-one. California, for example, gives a tenant five days to leave after trial.
Tenants should leave peacefully before the deadline. If by the deadline they are not gone, the police will physically evict them. Their property will be immediately removed. Again, it is best to avoid this ugly scene and just move before the deadline.
The Important Legal Concept to Remember: Landlords usually win eviction lawsuits because they know what they are doing and have done it many times. Unless a tenant truly has a reason that can stand up in court, it is best for everyone concerned if the tenant just moves out when served with the suit.
Excerpted with permission from: Ask a Lawyer: Landlord and Tenant. Copyright 2000 Steven D. Strauss. All rights reserved.
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