Eviction is a legal process a property owner can use to regain control from a tenant. In the United States, eviction is governed by state law, so the process and legal requirements vary widely between states. In some places, removal can be accomplished in mere days, while in other states, it may take multiple court trips over many months.
If you’re wondering how to evict a tenant, make sure you check your state’s eviction laws before taking any action.
What is the Eviction Process?
Typically, the process begins with a notice of violation, continues in court, and ends with a tenant’s forced removal. State laws establish the process that eviction proceedings must follow. In most jurisdictions, the eviction process is intended to prevent tenants from losing their homes before the court can sort out if there was a breach in the lease between landlord and tenant.
Reasons for Eviction
Eviction is the result of a tenant materially breaching their lease contract with their landlord. A breach can occur for a variety of reasons, including:
- Non-payment of rent
- Violations of the lease agreement
- Holdover tenancy, when a tenant maintains possession after the end of a lease
- Damage to the property caused by the tenant
- Criminal activity
- Health code violations
State law will dictate the reasons a landlord can legally evict a tenant. Sometimes, the particular reason for eviction can be significant. For example, some states allow tenants to avoid being evicted by paying late rent within a specific time frame.
How Does an Eviction Process Work?
Once a landlord has determined that the lease was breached, they can begin the eviction process to retake possession of their property. The process will vary from state to state but generally follows the following five steps:
Step 1: Give the Eviction Notice to the Tenant:
Before a landlord can remove a tenant and their possessions, they must notify the tenant they plan to bring an eviction action in court by providing them with a legal document. The eviction notice by state must comply with the law and specify the amount of time the tenant has to fix the breach (if required) or vacate the premises.
The three most common notices are:
Pay or Quit Notice
In states where landlords must give the tenant the chance to remedy the situation, this notice will allow them to remain if they can pay enough rent, typically within 3 to 5 days.
Comply or Quit Notice
For evictions stemming from violations of lease rules, such as keeping unauthorized pets, this notice will allow the tenant some amount of time to “cure” the breach and remain in the dwelling.
Unconditional Notice to Quit
This notice requires the tenant to leave after a certain number of days. An unconditional notice can only be used in most states after extreme or repeated lease violations, such as seriously damaging the property or using the property for criminal purposes.
If the tenant has not left the premises after the number of days stated in the notice passes, a landlord must proceed to court to receive a formal eviction.
Step 2: Fill Out the Eviction Form
As a landlord, you will be the plaintiff filing a complaint in any eviction lawsuit. You will sue the tenant as a defendant, essentially accusing them of illegally occupying your property. This may be referred to as an “unlawful detainer” action or a “forcible entry and detainer” suit in some jurisdictions.
Most large jurisdictions have separate legal dockets for these types of actions. Ensure you file the correct lawsuit in the property’s county, and make sure you list the proper plaintiff. For example, if you own property through a corporation or an LLC, the company will be the plaintiff, rather than the landlord in an individual capacity. You can quickly and easily fill out the paperwork you need using our Eviction Notice Form.
Step 3: Serve Papers to the Tenant
After filing a lawsuit, you must provide the tenant with proper notice of the eviction proceeding. This notice comes from legally “serving” the defendant with a copy of the lawsuit. You’ll also need to provide proof of service to the court.
Step 4: Eviction Trial
The tenant may have an opportunity after receiving service to submit a written answer to your complaint. In some states, tenants can forfeit the right to a trial by not filing an answer or not attending court. In these cases, the landlord is awarded a default judgment.
Most states provide for eviction actions to be fast-tracked to trial. If the court date arrives and the tenant is still living on the property, you will have a trial. At the trial, the landlord must prove that the tenant materially breached their lease and has received proper notice. In addition to an order to vacate or writ of possession, a winning landlord can receive damages and attorney’s fees in some states.
Step 5: After the Judgment
Typically, the writ for possession will allow a couple days for the tenant to move out on their own. Local law enforcement will carry out the writ for a landlord, forcibly removing the tenant from the premises. Once removed, a landlord will have the ability to change the locks.
When removing any belongings that a tenant left behind, a landlord needs to be aware of local laws. For example, some states require the property to be stored for a certain amount of time to allow the tenant to recover their personal possessions.
Rules for Landlords in Evictions
Certain parts of the eviction workflow are best left to the courts and law enforcement. Self-help eviction remedies (such as locking the tenant out or turning off utilities) are explicitly outlawed in many states and can lead to landlords owing fines, fees, or damages. Even where self-help eviction is legal, confrontations with tenants can quickly escalate. Damage to the property or violence is not uncommon in these situations.
It is best if landlords avoid:
- Attempting to remove the tenant from the property by force
- Removing the belongings of your tenants from the property until after a writ of possession is issued
- Changing the locks while the tenant still occupies the dwelling
- Utility shut-offs, such as water, gas, or electric
- Harassing the tenants beyond servicing legal notices
Evictions During Coronavirus Outbreak
Through at least the end of 2021, the federal government has issued a moratorium on residential evictions for non-payment of rent due to the COVID-19 pandemic. The national moratorium applies only to those tenants who meet stringent eligibility requirements.
Some states have also issued eviction moratoriums throughout 2020. While many have expired, they may be reinstated at any time due to public health concerns. Be sure to check for any temporary measures before beginning an eviction process.
Read more: Eviction Moratoriums by State
How Long Does the Eviction Process Take?
Eviction timelines vary significantly from state to state. The quickest states may go from posting of notice to a sheriff forcibly removing a tenant within two weeks. Slower states can take three or more months to have the eviction workflow make its way through the court system.
Even though most states or municipalities have a fast-tracked docket for evictions, the pace can slow if a judge determines they want to review additional evidence. All the while, the tenant can maintain possession of the property, though they will continue to owe rent during this time.
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