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Eviction
Eviction refers to the removal of a tenant from rental property by the landlord/ lender.
Depending on the laws of the jurisdiction, eviction is also known as unlawful detainer, summary possession, summary dispossess, forcible detainer, ejectment, and repossession, among others. Nevertheless, the term eviction is the most colloquially used in communications between the landlord/ lender and tenant.
Depending on the jurisdiction involved, before a tenant can be evicted, a landlord/ lender must win an eviction lawsuit or prevail in another step in the legal process. It should be born 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.
Persons being named in eviction proceedings should be aware that they may be listed on unlawful detainer registries, in other words "blacklisted", and may have difficulty renting in the future.
Notice
Remember that the procedures for evictions are established by State law and they vary from state to state, and can even vary within a single State, in different Cities or Counties. The following are general rules only.
There are two types of evictions, termination for cause and termination without cause.
If a tenancy is being terminated for cause, the landlord/ lender must give the tenant notice, commonly called a notice to quit or notice to vacate. The tenant has a short amount of time (usually 3 to 5 days) to correct the error. The most commonly causes are nonpayment of rent or a breach of the lease (such as keeping a pet when pets are not allowed). In some cases, a landlord/ lender may post an unconditional quit notice, meaning the tenant can do nothing to correct the error. These are reserved for extreme cases such as failure to pay rent for multiple months or the apartment being used for criminal activity.
A tenancy can be terminated without cause if there is no lease or the lease is expiring, although further advance notice must be given (generally 1 to 3 months). In some areas, just cause eviction controls exist, making this type of eviction more difficult or illegal. Rent control ordinances or statutes may also affect a landlord/ lender's ability to terminate tenancy without cause. Also, if the housing is subsidized by a housing program of the federal government, federal laws and regulations will also apply.
In most places, the guidelines for evictions due to non-payment of rent are different from those forced as a result of 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 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/ lender then serves the tenant with a complaint. This requires the tenant to appear in court. If the tenant does not file an answer or appear in court, the landlord/ lender can then file for a default judgment and wins automatically. In the tenant's answer, they may state their side of the story, and provide affirmative defenses, such as the landlord/ lender not making required repairs or the tenant not being given proper notice.
When the answer is filed, a trial date is set. Eviction cases are often expedited since the issue is time-sensitive (the landlord/ lender loses rental income while the tenant remains in possession). If the judge sides with the tenant, the tenant remains in possession of the property, although any back rent due must still be paid. If the landlord/ lender 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 they need 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 payment the full amount of rent due plus all other fees owed to the landlord/ lender allowable under the law.
In some of these jurisdictions, if the tenant continually fails to pays rent, resulting in the repeated filing of complaints by the landlord/ lender, the landlord/ lender 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/ lender could make such a filing, even in jurisdictions so providing, varies by jurisdiction.
Removal from the property
The landlord/ lender obtains a writ of possession from the court and presents it to a law enforcement officer. The officer posts a notice for the tenant that the officer will return to remove the tenant from the property on a certain day. On that day, the officer may physically remove the tenant and any other people on the property if they are still there. Any possessions of the tenant still on the property may be put in storage for the tenant, or considered abandoned, depending on local laws. The property is then turned over to the landlord/ lender.
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/ lender to attempt to force the tenant off the property themselves, 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/ lender or file a counterclaim against an existing eviction proceeding.
Future Problems for Tenants
There are a number of companies across the United States that compile U.D. Registries, (see The Registry), which are lists compiled from public court records of persons who have been named in eviction suits, regardless of fault or outcome (e.g. even if there were habitability concerns, or the eviction was retaliatory, or the matter was settled before trial, or the suit was dismissed by the landlord/ lender, or the tenant moved out voluntarily, or even if the tenant won). These lists are called U.D. Registries. Companies that compile these lists then sell this information to landlord/ lenders who do background checks of prospective tenants, effectively blacklisting tenants who have ever been involved in an eviction for any reason. Although many of these company practices have been found illegal, they mostly continue undeterred. A tenant's credit history may also be adversely affected by an eviction.
Eviction harassment
The fact that your landlord/ lender owns your home does not give her/him, or anyone acting on her/his behalf, a right to harass you.
If your landlord/ lender does something that interferes with your ability to enjoy living in your home in peace and is intended to make you leave your home or take away your rights, s/he could be guilty of harassment.
Remember: The fact that your landlord/ lender owns your home does not give her/him, or anyone acting on her/his behalf, a right to harass you.
- Examples of harassment
- What if a letting agent is harassing me?
- What can I do about it?
- Does it matter what type of tenancy I have?
Examples of harassment
Harassment can take a number of different forms, for example:
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- removing or restricting access to services such as gas, electricity or water, or failing to pay the bills so that these services are cut off
- visiting your home regularly without warning, especially late at night
- interfering with your post
- threatening you
- sending builders round without notice
- entering your home when you are not there, without your permission
- allowing your home to get into such a bad state of repair that it's dangerous for you to stay
- beginning disruptive repair works and not finishing them
- harassing you because of your gender, race or sexuality
- refusing to let you into certain parts of your home (for example, the kitchen or bathroom)
- stopping you from having guests
- intentionally moving in other tenants who cause a nuisance to you
- forcing you to sign agreements which take away your legal rights.
This behaviour may be intended to make you leave your home without your landlord/ lender having to follow the proper legal procedures, or it may be for other reasons. Harassment can be very distressing and might make you feel as though you have no choice other than to move out. This is not the case - harassment is in fact a serious criminal offence.
What if a letting agent is harassing me?
If you rent your home privately, your landlord/ lender may have employed a letting agency or managing agent to look after the property on her/his behalf. Harassment or illegal eviction by an agent, or by anyone working on behalf of the landlord/ lender, is also criminal offences. If your landlord/ lender knows how the agent is behaving, then your landlord/ lender could be held equally responsible by law. If your landlord/ lender could not have known what was happening, then the agent will be held solely responsible.
Some agencies belong to trade associations such as:
- the Association of Residential Letting Agents
- the National Association of Estate Agents
- the National Approved Lettings Scheme.
If you are being harassed, or have been illegally evicted by an agent, check whether it belongs to one of these trade associations. Most trade associations have a complaints procedure and some may have a mediation service, which could help to negotiate a solution to the problem. If your agent has behaved illegally, it could be asked to leave the trade association.
What can I do about it?
If your landlord/ lender (or agent) is harassing you, you may be able to get help from the council, or take your landlord/ lender to court. Harassment does not have to be obvious or intentional before you can do something about it. You may also be able to:
- ask your landlord/ lender to stop the behavior
- keep a diary, notes and photographs of what happens
- go to an advice centre, the police, the council, or a solicitor for help
- ask your landlord/ lender to put all communication with you in writing
- write to her/him, saying if the harassment continues you will take legal action
- have someone with you as a witness whenever you see your landlord/ lender
- get together with other tenants who have the same landlord/ lender.
In an emergency, such as if you have been locked out, contact the council. There is usually an officer (sometimes called a tenancy relations officer) who deals with harassment and illegal eviction. If they are not available to help immediately or if violence has been threatened, you should also call the police.
Does it matter what type of tenancy I have?
Yes. Most people who rent their home privately have an assured shorthold tenancy but there are other types of private tenancy, which can give you very different rights. It's important to check what kind of tenancy you have as it can have a big impact on how easy it is for you to take action to stop the harassment. For example, if you're an assured shorthold tenant, your landlord/ lender doesn't need a special legal reason to evict you, so you should get advice before you challenge her/him to ensure that you don't put your home at risk.
If you have an assured tenancy or a regulated tenancy you are in a much stronger position as the landlord/ lender can't evict you without a valid legal reason. Get advice if you're not certain what kind of tenancy you have.
Sources: Wikipedia
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