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The Eviction Procedure: When & How to File Eviction

by Editor | ezLandlordForms
Eviction process in court

Evictions can be a traumatic event for tenants, because they are being ordered to leave their home. But no one stops to realize that an eviction can be equally as traumatic for landlords because it is a costly, convoluted process that is different in each state. When a landlord decides to evict, it is generally not a decision made lightly.

So, what circumstances could cause a landlord to start the eviction process? According to Mike Hill, owner of Mike Hill Real Estate, “Eviction can be initiated for any violation of any provision of the lease.” Even if the landlord fails to renew, if there’s a clause in the lease that says that if it rolls over into a month-to-month rental, all other terms and conditions continue to apply, then the landlord retains the right to evict if a tenant violates one of the provisions of the original lease.

If the landlord does decide that the tenant has broken one of the provisions, and there is a need to begin an eviction, then the landlord must start the process by giving the tenant a Notice To Quit. This is a written notice requiring the tenant to move out by a certain deadline unless the problem is resolved. Your state’s property laws determine this deadline, and it depends on the reason you’re asking your tenants to leave, and the type of tenants you have.

There are three types of Notice To Quit:

  1. For nonpayment of rent – Mike says that in many states, landlords are “required to make a final demand for rent and warn of the consequences of not paying it, before initiating the usual legal action to remove the tenant. If the tenant immediately pays rent, no problem, as long as the late charge is included. At this point, before the landlord starts the eviction process, the landlord must accept the rent, even if late.”
  2. For violation of a term or condition of the lease other than non-payment of rent – These are commonly known as Cure or Quit Notices, and refer to situations such as keeping a pet if the lease prohibits it, or making excessive noise.
  3. For termination of tenancy – This is used to end a periodic tenancy. In general, this type of notice requires the landlord to give the tenant a 30-day advance warning that the tenancy is being ended. Some states require that a 60-day notice be given to tenants who have been in residence for over a year.

Care should be given as to the way the Notice To Quit is delivered. In some cases, if it is determined that the letter was improperly delivered, it can prevent the landlord from filing for eviction.

The best approach is for landlords or their representatives to hand deliver the Notice directly to the tenant. If the tenant is unavailable to receive it, then it can be left with a family member other than a young child. It can also be tacked on the front door. However, it must be readily visible. The last alternative is to send it by certified mail, but you should also send a copy by first class mail, too. Finally, it’s important to note that each state has different laws about the delivery of eviction notices, so be sure to double check your state’s laws.

Once the Notice is served, the tenant must respond within the specified period stated. Failure to do so, results in the landlord being able to file a complaint for eviction. This has a variety of names depending upon the state. For example, in Mike’s home state of Georgia, it is called Dispossessory Warrant, and it is filed through Lowndes County Magistrate Court, formerly known as Small Claims Court. However, in some states the complaint is filed in Superior Court.

Mike explained that the complaint gives the tenant the option to move or solve the problem. He added that even though “non-payment of rent is an absolute reason for eviction, it’s still possible for the tenant to answer the warrant in two ways: The tenant can claim to be withholding the rent due to something like repairs not being made, or the tenant can kill the warrant by an ‘answer’ in the form of rent, late charges and court costs, which the landlord must accept the first time. If the landlord takes out another non-payment warrant [against the same tenant] within the same 12-month period, the landlord has the option of taking or not taking the money, thus forcing the tenant out, if the landlord has had enough of him/her.”

If the tenant refuses to file an answer with the court, the court will enter a default judgment for eviction provided the landlord proves that the court papers were served properly. Default judgments can be set aside if the tenant can provide a valid explanation as to why they didn’t respond.

If the tenant can show cause, the case will be scheduled for a hearing. If the court rules that the landlord can evict, the landlord must take the court order to the sheriff and the sheriff will post a notice on the tenant’s door, telling the tenant that if they don’t vacate by the date and time given, the sheriff will remove the tenant and their property from the apartment.

In this very long process, there are plenty of opportunities for error. However, Mike notes that, “The biggest and most costly mistake is not beginning the eviction process soon enough, which is within the same month in which rent isn’t paid. They [landlords] make the huge mistake of accepting whatever excuse the tenant has for not making the payment. For those landlords, it’s not that the eviction process itself gets more costly, it’s the lack of the eviction process that gets expensive.”

Finally, Mike cautions landlords not to personalize the relationship between themselves and their tenants. “It’s a business transaction that needs to be made every month and on time, according to the agreement both tenant and landlord signed.”

For eviction notices and forms, and State Assist help with your state’s eviction laws, visit our Eviction Notices page.

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