Legal
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.

• 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.

• 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.

• 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.

• 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.

• 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.

• 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.

• 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.

• Locks: Change the locks immediately, this is your property and you must protect it.

• 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.

• 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.

• 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.

• 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.
  

You may republish this article, as long as you do not edit and you agree to preserve all links to the author and www.yourpropertypath.com