What To Know About State Eviction
State Eviction Processes
The federal government leaves it up to the states to determine eviction procedures and regulations. As a result, the eviction process varies widely across the U.S., and understanding the laws that govern it can be difficult, especially if you own properties in multiple states.
For this reason, it is crucial to seek the assistance of an experienced attorney whenever embarking on an eviction action. Attorneys possess intimate knowledge of the laws about eviction in their respective states and can handle the entire process on your behalf, from filing a complaint in court to requesting the sheriff to remove the tenant.
However, if you cannot afford legal aid and must represent yourself in court (or simply want to make the process easier on everyone), it is important to prioritize reviewing your state’s eviction laws. In this article, we’ll cover a few key aspects you should be aware of regarding your state’s eviction lawsuit process before pursuing this legal action.
When to Send an Eviction Notice Letter
In nearly every state and under almost every circumstance, the process of eviction starts with sending a formal notice. First, however, you need to have a valid reason for removing the tenant, supported by a law or landlord remedy that justifies the eviction.
In most states, a property owner can send an eviction notice letter when a tenant:
- Fails to pay rent (after any grace periods)
- Violates a term of the lease or rental agreement
- Holds over after the lease has terminated
- Fails to uphold their responsibilities under the law (especially ones that materially endanger the health and safety of other tenants)
- Engages in violence or criminal activity on the premises
- Makes, sells, or manufactures illegal drugs
- Makes threats or causes a public nuisance
In most states, the type and severity of the violation determines the number of days’ notice you must provide to the tenant before filing for eviction. Minor violations might require ample notice, while severe violations could only give the tenant zero to 24 hours to move out. State eviction laws also dictate whether you’re required to give the tenant a chance to fix or “cure” the problem to avoid eviction, which sometimes depends on what the terms of your lease agreement are. Pay special attention to these laws, as failure to serve the proper notice or wait out the designated notice period could result in the tenant raising a valid defense and your case being rejected by the court.
How to File an Eviction Complaint with the Court
Once you’re satisfied that you have a justifiable basis for eviction and you’ve served the proper notice, the next step is to file a formal action in court.
In most states, evictions are heard in district or county court. However, depending on your state, you could also be required to file in a magistrate, justice of the peace, superior, circuit, or small claims court. The action must be filed in the court that has jurisdiction over where the rental property is located.
Among the state courts, the “eviction action” itself goes by many names. It is often called an Eviction Action, Unlawful Detainer Action, or Summary Possession Action. However, the following terms also refer to eviction actions:
- Forcible Entry and Detainer (FED) Action
- Summary Proceeding
- Possessory Action
- Dispossessory Action
You will be required to file a formal eviction complaint, which likewise goes by many names:
- Statement of Claim
- Dispossessory Affidavit
- Claim for Forcible Entry and Detainer
- Complaint in Unlawful Detainer
- Summary Possession Complaint
- Summary Ejectment
- Summary Process
- Verified Complaint
- Verified Petition
- Warrant
- Rule for Possession
It’s a good idea to familiarize yourself with the language used to refer to evictions and court documents in your state’s courts. If you plan to represent yourself, you’ll need to know how to refer to various court actions and their associated forms.
Many states have instructions for filing an eviction complaint posted online for landlords’ convenience. Before you go to court, be sure you know which documents to bring (e.g., a copy of the lease, eviction notice, proof of service, etc.). In many cases, you can file your complaint online, electronically.
How to Serve the Tenant a Summons to Court
Next, the court asks the tenant to attend a court hearing by issuing a summons (sometimes, the summons is part of the complaint). Both the summons and complaint must be served to the tenant in the manner dictated in your state’s Rules of Civil Procedure. This usually means a sheriff, constable, or private process server must serve the documents, but some states allow service to be made by any adult who isn’t part of the case.
There are usually very strict regulations for serving a summons. Personal delivery to the tenant is always preferred, but sometimes it isn’t possible to hand the forms to the tenant directly. In these cases, substitute service can usually be made by handing it to a relative, posting a copy at the premises, mailing a copy, or more than one of these methods.
The person who serves the documents is usually also required to “return” them, which means taking them back to the court and filling out a brief affidavit or account explaining the manner of service and the steps they took to make proper service according to law.
What Kind of Response to Expect from the Tenant
In some states, the tenant is required to make some kind of response to avoid a default judgment. This could be a formal response like a written answer or counterclaim, but it could also simply be an oral response at the hearing. In most states that require written answers, you will be served a copy and/or receive a Notice of Trial shortly thereafter.
What Happens at the Court Hearing
Eviction hearing procedures are largely similar across the states. Both parties get a chance to present their cases and any evidence they have to a judge, who will consider both sides. Sometimes the landlord or tenant can request a jury trial, but this will prolong the process. Judgments for most well-prepared eviction cases are issued in the landlord’s favor, especially when the tenant fails to appear at the hearing or didn’t file an answer.
Keep in mind that for nonpayment cases in many states, tenants can still avoid eviction, even after a judgment against them, by paying the rent they owe. The same is true if the tenant files an appeal—depending on the state, they may be allowed to stay in the unit until the appeal is decided, or they may still be required to move out.
How to Get the Writ of Possession Executed
If you win an eviction case, the judge will issue a writ of possession, restitution, or execution—an order for the tenant’s removal from the rental property. Some states’ eviction laws automatically stay the writ for a few days to give the tenant a chance to move out on their own. In this case, you’ll have to go back to the court later to request a writ in the event that the tenant still refuses to move after the stay period.
Once you have a writ, you should act quickly—writs usually expire after several months. Take the writ to the sheriff’s office (or in some states, the state marshal) and request execution. You’ll need to pay a fee for the sheriff to serve the writ to the tenant, and possibly an additional fee for actual execution of the judgment. Most writs give the tenant a final notice period of around 24 hours to a few days to move out before the sheriff returns to forcibly remove them.
Note: In all states, it is illegal to remove a tenant yourself—the sheriff must do it. Do not attempt to physically force the tenant to leave, shut off their utilities, or change the locks until the eviction is complete. These so-called “self-help” eviction tactics are illegal.
How to Request a Monetary Judgment or Get the Tenant to Pay Court Fees
Landlords are entitled to recover damages (unpaid rent, fees, etc.) and court costs after an eviction. Often, you can also recover reasonable attorney’s fees as well. Some states allow you to request a monetary judgment concurrently with the eviction action, but in other states (or in cases when the amount of money claimed is very high) you must file a separate claim and attend an entirely different hearing. Tenants are also usually responsible for the actual cost of removing and storing any belongings left behind if they wish to claim them.
What to Do with the Tenant’s Personal Property After an Eviction
Speaking of abandoned belongings: If you think you can simply toss them, think again. In most states, landlord must follow rules for removing and storing the tenant’s personal property. Storage at the rental unit or a commercial warehouse is usually fine, but most states specify a set number of days’ notice you must give the tenant before trashing or selling any of their things. And if you choose to sell the items once the notice period expires, you may or may not be able to keep the proceeds beyond what’s needed to cover outstanding rent, damages, and storage/removal costs.
Laws About Eviction for Squatters
Squatters are individuals who reside in your property without legal permission. As they are neither tenants nor simple trespassers, there are often specific procedures involved in removing them. However, with the exception of one state, landlords are generally required to follow the formal eviction process to remove squatters.
What is the Law on Eviction in Your State?
If you rent properties, don’t wait any longer to learn what is the law on eviction in your state. It’s only a matter of time before you’ll go through it yourself, and preparation—even if you have an attorney—is the best way to ensure a smooth hearing and straightforward judgment in your favor.
