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The Eviction Process
If the tenant doesn't voluntarily move out after the landlord has
properly given the required notice to the tenant, the landlord can
evict the tenant.
Unlawful Detainer: In
order to evict the tenant, the landlord must file an unlawful detainer
lawsuit in superior court. The landlord is the "plaintiff" and the tenant is called the "defendant."
Court Hearing: In an unlawful
detainer lawsuit, the court holds a hearing at which the parties can
present their cases. If the court finds that
the tenant has a good defense, the court will not evict the tenant. If
the court decides in favor of the tenant, the tenant will not have to
move, and the landlord may be ordered to pay court costs. The landlord also may have to pay the
tenant's attorney's fees.
This process assures the tenant of the right
to a court hearing if the tenant believes that the landlord has no
right to evict the tenant.
For example:
The landlord cannot physically remove or lockout, cut off
utilities such as water or electricity, remove outside windows or
doors, or seize (take) the tenant's belongings in order to carry out
the eviction.
The landlord must use the court procedures. However, both parties may
agree to a mediation process. This may be a less expensive route and
also may require more give and take. If the landlord uses unlawful methods to evict a tenant, the landlord
may be subject to liability for the tenant's damages, as well as
penalties.
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Writ of Possession:
If the court decides in favor of the landlord, the court will issue a
writ of possession. The writ of possession orders the sheriff to remove
the tenant from the rental unit, but gives the tenant five days from
the date that the writ is served to leave voluntarily. If the tenant
does not leave by the end of the fifth day, the writ of possession
authorizes the sheriff to physically remove and lock the tenant out,
and seize (take) the tenant's belongings that have been left in the
rental unit.
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Judgment: The
court also may award the landlord any unpaid rent if the eviction is
based on the tenant's failure to pay rent,. The court also may award the
landlord damages, court costs, and attorney's fees. If the court finds
that the tenant acted maliciously in not giving up the rental unit, the
court also may award the landlord up to $600 as a penalty. The judgment
against the tenant will be reported on the tenant's credit report for
seven years.
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Be aware
that the laws will vary: You will need to check with your attorney or
apartment association as to the best way to proceed. This is a last
resort effort and must be done in the proper manner.
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Proper Service: Pay
close attention to the laws in your locality and follow them exactly.
You will need the proper forms for your local and you will need to
document a proper legal service. Generally, you have to serve the
notice to the occupant and fill out a separate form which documents how
and who you served the notice to. There are some sample forms located
on this site.
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Tenant Response:
Generally, a tenant will have a certain number of days to respond in
writing as to why rent is not being paid. The tenant will have to make
a case that justifies the withholding of rent. If the tenant refuses to
follow this procedure then it will be an uncontested eviction.
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Uncontested eviction: Keep in mind that you
should limit contact with the tenant during this process. Remember, you must maintain the property and handle
all maintenance and services in the normal
manner.
After Settlement.
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Document it: Go
to the unit immediately after the tenant has left. Take a camera or a
video-cam and photograph the condition of the entire unit. Document any
damage that the tenant may have left. It is also a good idea to have a
witness before you touch or change anything.
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Locks: Change the locks immediately, this is your property and you must protect it.
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Abandonment of Property:
Tenants may have left some material or possessions behind. Be aware of
the laws and procedures that of your locale. You should try to contact
them and have any exchange or instructions in writing before you
dispose of it. It is also a good idea to have a witness before you
touch or change anything, if you find damage or property left behind. Video cam or use a camera to photograph the
condition and any personal material left behind. You should not
indiscriminately move or throw out another's property without
understanding the obligations you may still have as the landlord to
your ex-tenant. If your area is under rent control the rules can vary by city.
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Evaluation: After
photo documentation and the protection of a witness, you should
document the abandoned property and evaluate it at fair market value.
Take a detailed inventory and then speak with an expert to determine
how you have to handle abandonment in your locale.
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Storage: Your
landlord obligations may involve storing abandoned property for some
period of time. The law is complicated and can vary from state to
state. Consult your attorney. If your area is under rent control it may
vary by city.
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Auction:
After the period required in some states to store abandoned property
you may have to auction it and use that money to offset any debts that
the tenant may owe you for damages or court costs. How the money is
handled is varies by state.
REsourced from www.yourpropertypath.com
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