How to File a Formal Eviction Action as the Landlord - dummies

How to File a Formal Eviction Action as the Landlord

By Robert S. Griswold, Laurence Harmon

If your resident doesn’t cure a violation or leave the property after receiving the appropriate legal notice, she isn’t automatically evicted. Instead, you, the landlord, must begin a formal eviction process by following these steps:

  1. File the required forms with your local court and arrange to have the resident properly served with a summons and complaint.

    The complaint is usually a preprinted form, and you can only seek unpaid rent and actual damages (such as court costs and attorney’s fees). Many times, daily rental damages continue to accrue during the pendency of the action (the time between when you file and the court issues its decision), and they can be added to the judgment granted at the end of the court process.

    Serving a legal notice isn’t simply a matter of mailing the notice or slipping it under the resident’s door. You must have an authorized person attempt to physically deliver the legal notice to the resident face to face. If the notice can’t be delivered directly to the resident, there are usually procedures for substitute service or posting and mailing pursuant to a court order.

    Every state has specific rules and procedures as to what exactly constitutes proper legal service, including who can serve notices, the method of delivery, the specific parties who can be legally served, and the amount of time the resident has to respond to the legal notice. Serving some legal notices may not be simply a matter of mailing the notice. Check with your attorney for the requirements in your area.

  2. By law, a trial date is set, and your resident has a certain number of days to file an answer to your summons and complaint.

    Residents usually either deny the allegations you’ve made in your eviction action or claim that they have an affirmative defense (a legal justification for their actions). The resident may deny your allegations, for example, if she has a canceled check showing that the rent was paid and your records are in error.

    Frequently, residents know that they’ve materially breached their rental contracts and voluntarily leave the premises. Or sometimes residents settle with you out of court.

    If your resident settles informally, you must officially dismiss your court eviction action because doing so is the proper way to treat your resident and it also preserves your reputation with the court. After all, courts have limited resources and don’t respond well to parties who resolve their matter and fail to file a timely dismissal.

    Also, failing to dismiss an eviction action can result in a negative credit standing for your resident. Be sure that you put your informal settlement agreement in writing, with all residents acknowledging that they have given up the right to possess the premises.

  3. If your resident doesn’t file an answer in a timely manner, the eviction action proceeds to court without the resident.

    This scenario is known as an uncontested eviction. The court requires you to prove your case, but the resident isn’t there to respond to or deny your charges. Typically, you can easily prevail in this situation, as long as you have good documentation.

  4. If your resident files an answer and appears at court, each party receives the opportunity to present its evidence before the court makes a ruling.

    This scenario is known as a contested eviction. In the alternative, the parties can enter into a formal written settlement right before trial. Then the judge signs the settlement and it becomes a court order.

    If a settlement isn’t reached, the parties proceed to present evidence in the courtroom. If you’re prepared and credible, you can generally win. However, the courts can be very harsh if you’ve acted illegally or in a retaliatory or discriminatory manner toward the resident.

    You may also have to show that you’ve properly and promptly responded to any complaints by your resident during her tenancy, especially those that involve allegations of health and safety violations or uninhabitable conditions at your property. This is where your detailed keeping of all maintenance or service requests and written documentation showing all communications between you and the resident will be very helpful to your case.

    A resident may be able to argue that he’s entitled to additional time to work out a payment plan for the unpaid rent or that she has a hardship that requires the court’s leniency. Courts have been known to allow a resident an extension because of inclement weather, an appeal of the ruling, serious health issues, or other situations beyond the resident’s control.

    Some jurisdictions show extra leniency during the fall and winter holidays, so you may want to be more diligent to get your matter to court quickly if the holidays are approaching.

  5. If you win the eviction lawsuit, you must present the judgment to local law enforcement.

    Local law enforcement gives the resident one final notice before going to the rental unit and physically removing the resident (and in some states her possessions).

    Arrange to have someone meet the law enforcement officers at the property at the designated time, and be sure that you have a locksmith or a capable employee to be able to open the unit if the residents have changed the locks and to rekey the unit immediately after you receive legal possession of the unit.