Eviction

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Two men with children, being evicted, stand with their possessions on the sidewalk, circa 1910, on the Lower East Side of New York City.

Eviction is the removal of a tenant from rental property by the landlord. Depending on the laws of the jurisdiction, eviction may also be known as unlawful detainer, summary possession, summary dispossess, forcible detainer, ejectment, and repossession, among other terms. Nevertheless, the term eviction is the most commonly used in communications between the landlord and tenant.

Depending on the jurisdiction involved, before a tenant can be evicted, a landlord must win an eviction lawsuit or prevail in another step in the legal process. It should be borne in mind that eviction, as with ejectment and certain other related terms, has precise meanings only in certain historical contexts (e.g., under the English common law of past centuries), or with respect to specific jurisdictions. In present-day practice and procedure, there has come to be a wide variation in the content of these terms from jurisdiction to jurisdiction. One should not assume that all aspects of the discussions below will necessarily apply even in all states or other common law jurisdictions.

The eviction process

The examples and perspective in this article may not represent a worldwide view of the subject. Please improve this article and discuss the issue on the talk page. (December 2010)

Flow Diagram of the Eviction Process in British Columbia, Canada

One should remember that the procedures for evictions are established by the laws of various jurisdictions world-wide and may vary considerably between nations, and even between sub-national jurisdictions, depending on the specific content of the law; this article aims only to present a general outline. Specific terminology varies geographically.

Notice

Depending on the jurisdiction, if a landlord terminates a tenancy, the landlord may be required to give the tenant a notice, commonly called a notice to quit or notice to vacate prior to instituting formal legal proceedings. This is true whether the termination is "for cause" (i.e., because the tenant has violated part of the rental agreement) or without cause (i.e., because the landlord has simply decided to terminate the tenancy). Note that in some jurisdictions, a landlord cannot terminate a tenancy except for certain legally permitted reasons. If the termination is for cause, the tenant may have a short amount of time (perhaps from 3 to 10 days, or longer if the rental agreement provides a longer period) in which to correct the violation. Common causes for eviction include nonpayment of rent or a breach of the lease (such as keeping a pet when pets are not allowed). In some cases, depending on the laws of the particular jurisdiction, a landlord may post an unconditional quit notice, meaning the tenant can do nothing to correct the violation.

In some jurisdictions a landlord may terminate a tenancy without cause if the tenancy is not for a specific length of time (such as a month-to-month tenancy), or if the lease has expired, and the tenant has not moved. In many jurisidictions, written notice of termination must be given (generally 1 to 3 months) before the landlord commences an eviction lawsuit. In some areas,^[which?] just cause eviction controls exist, making this type of eviction more difficult or illegal. Rent control ordinances or statutes may also affect a landlord's ability to terminate tenancy without cause.

In most places, the guidelines for evictions due to non-payment of rent are different from those resulting from other causes, such as breach of lease. When the reason for eviction is due to causes other than rent, many places have laws requiring the tenant to be given a specified amount of time before moving, which may be, for example, 30 days following all court proceedings. But in the case of unpaid rent, eviction may occur within a few weeks (or less) following the due date for the rent. The exact amount of time is contingent upon the jurisdiction's guidelines and the load of cases in the jurisdiction's court system.

Summons and trial

If the tenant remains in possession of the property after the notice to quit has expired, the landlord may then serve the tenant with a complaint, or lawsuit. Depending on the jurisdiction, the tenant may be required to submit a written response (answer) in proper legal form or to simply appear in court. If the tenant does not file an answer or appear in court, the landlord can then file for a default judgment and win the lawsuit automatically. Any money damages incurred by the tenant can at this point be awarded to the landlord. By filing an answer, the tenant may state his or her side of the story, and provide affirmative defenses, such as the landlord not making required repairs or charging more than the legally permitted rent, or the tenant not being given proper notice.

When the tenant's answer is filed, a trial date is set. Eviction cases are often expedited since the issue is time-sensitive (the landlord loses rental income while the tenant remains in possession). A jury trial may be requested by either party. If the judge or jury sides with the tenant, the tenant remains in possession of the property. The judge or jury may still order any past due rent to be paid, plus any fees and costs. If the landlord wins, the tenant has a small window of time to move before the eviction takes place, generally less than a week, although the tenant can ask for a stay of execution if he/she needs more time.

Right to redemption

In some jurisdictions, a tenant who has failed to pay rent is granted a right to redemption, unless otherwise specified in court documents. Right to Redemption would mean that the tenant may cancel the eviction and remain in the rented property by paying the full amount of rent due plus all other fees owed to the landlord allowable under the law.

In some of these jurisdictions, if the tenant continually fails to pay rent, resulting in the repeated filing of complaints by the landlord, the landlord may file for no right to redemption. This would mean that following an eviction trial, the case against the tenant would stand, and that the tenant could not remain in the property by payment of rent. The number of trials required before a landlord could make such a filing, even in jurisdictions so providing, varies by jurisdiction.

Removal from the property

After losing the eviction suit, depending on jurisdiction, the tenant may have a certain number of days to leave the premises prior to further action being taken, or may be required to leave the premises immediately.

Should the tenant remain in the premises after losing the eviction suit, the landlord would then obtain a writ of possession from the court and present it to the appropriate law enforcement officer, sometimes the local Sheriff or Marshal. The officer then posts a notice for the tenant on the property that the officer will return on a specified day to remove the tenant from the property if the tenant has not moved. On that day, if necessary, the officer may physically remove the tenant and any other people on the property. Any possessions of the tenant still on the property may be turned over to the tenant (funiture, personal effects), put in storage for the tenant, and/or considered abandoned, depending on local laws. The rental property is then turned over to the landlord.

Self-help evictions

In most jurisdictions, an eviction may only take place under the auspices of a law enforcement officer or a representative of the law as defined by the jurisdiction's laws. It is illegal in most places for the landlord to attempt to force the tenant off the property himself/herself, or to force them to move in other ways, such as shutting off heat or utilities, or changing locks. A tenant facing such measures may sue the landlord (sometimes called a "constructive eviction" claim) or file a counterclaim against an existing eviction proceeding, depending on the procedural aspects of local law.

Countries

UK

Notices

In the United Kingdom Eviction process, there are two main sections which are used in relation to tenant eviction. A Section 8 Notice provides a landlord with authority to serve a notice to a problem tenant who has breached their tenancy agreement. There is also a section 21, which differs from a section 8 notice as it can only be issued at the end of a tenancy, whereas a section 8 can be served during any time of the fixed shorthold tenancy.

Germany

In Germany, court-issued eviction order must include a list of all persons to be evicted. If the property turns out to be used by someone else, the owner needs a new eviction order. It is unclear how cases are treated where the identity of a squatter is unknown. Self-help eviction is only allowed if it is clear that the tenant or squatter has moved out but refuses to return their keys. Landlords are not allowed to keep a spare or master key when renting out an apartment.

See also

• Retaliatory eviction
• Unlawful eviction and harassment
• Ejectment
• Foreclosure
• Lease
• Quiet title
• The Registry
• Population transfer

External links

• Nolo - Landlords and Property Management
• Good Cause Eviction (CT)
• New York State housing rights guide
• The Anti-Eviction Campaign (South Africa)
• Renters in the Crosshairs from Dollars & Sense, March/April 2009
• Self-help eviction for California Landlords
• The National Landlord Tenant Guide to Eviction All 50 States