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Eviction Notice Has Been Served… Now What?

by Editor | ezLandlordForms

Going through the lengthy process to evict a tenant can seem a daunting task.  While eviction notices and mandatory waiting periods to start the eviction process vary by state, after serving notice the eviction process is generally consistent across the US.  Here is an overview of the steps that must be taken after serving the eviction notice.

Filing a complaint or petition in court.  Once the eviction notice is served and the waiting period has ended, a landlord must go to the courthouse to file a complaint or petition (sometimes referred to as filing a non-payment or hold-over proceeding).  In order to file the complaint, landlords are usually required to show proof that they complied with state law requirements for the amount of notice given to the tenant for the eviction.  Landlords must also pay a filing fee, set by the court.  After the eviction complaint is filed the court will often mail a copy of the complaint to the tenant; however some courts require that landlords mail the tenant a copy of the complaint themselves.  It is important for landlords to check the requirements in his or her local court specifically.

The court hearing.  After the complaint is filed, the court will schedule a date for a hearing before a judge where the landlord and tenant will be able to present their case.  Some courts require the landlord and tenant to discuss the case in an effort to settle or require some form of mediation before presenting before the judge.  If the court does not require this type of discussion or if the discussion does not end in agreement, the landlord has the opportunity to explain the basis of the eviction before a judge.  Each party is entitled to bring a landlord-tenant attorney to represent them at the hearing.  Regardless of whether the landlord is represented by legal counsel, the landlord will have to explain why he or she is legally entitled to evict the tenant.  This requires the landlord to bring all the necessary documentation to show that he or she has a valid reason for evicting the tenant under the laws of their state (the lease agreement, records of payment, records of communication between the landlord and tenant, proof the tenant was given proper notice and opportunity to respond, etc.).  If the judge rules in favor of the landlord, the court will sign and issue a writ of possession, also called a judgment of possession, and warrant of eviction.

Scheduling an eviction.  After the judgment is received, the landlord must contact the county sheriff’s office to schedule the eviction.  Landlords may need to provide the sheriff's office with certified copies of the judgment of possession, the eviction notice and/or the warrant of eviction before scheduling, or may need to bring these and other documentation on the actual eviction date.  The landlord may have to pay another filing fee to the sheriff's department.  The sheriff's office may schedule the eviction date on the spot, or may schedule it later and mail the landlord a notice for when it is scheduled.  Most counties have eviction schedules posted online where the landlord can check which day the sheriff’s deputy will be evicting in their district.  Most important however is that landlords confirm with the sheriff’s office what documentation he or she needs to bring to the eviction.

What to do the day of.  On the date of the scheduled eviction, the landlord or the landlord’s representative must meet the deputy at the property (usually with a locksmith as well).  The landlord or the landlord’s representative should bring any documentation required by the sheriff’s office to the actual eviction and the deputy will often have the landlord sign papers authorizing him to gain entry to the property.

Filing a money judgment for unpaid rent.  If the eviction judgment included an award for back-rent, the landlord can enforce this judgment in a few ways; one of which is garnishing the tenant’s wages.  This is done by presenting the judgment to the tenant’s employer in the form of a court order.  If the court did not issue a money judgment, the landlord must then begin a rent collection action against the tenant; many of which go through small claims courts.  This requires the landlord to file a separate action (with yet another filing fee) to obtain any back-rent and potentially other fees associated with the eviction.

While the process for eviction is fairly similar from one jurisdiction to another, it is essential that landlords obtain the requirements for filing an eviction and rent collection action from their local courthouse or small claims court and adhere to what is required in that court specifically.

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