Eviction Issues

Most tenants have interest in the eviction procedures set forth so as to avoid being unjustly evicted. Most states have laws which will provide certain procedures to ensure that each tenant is accorded due process of law. Thus, a tenant usually does not have to worry about coming home, only to find his/her belongings on the street and someone else living in his/her unit.

The problem with an analysis of landlord-tenant law is that it is statutory in nature and each state has different laws, procedures and time limitations. You should thus consult your Plan Attorney if you: (1) want to evict a tenant; or (2) are being evicted, and you want to contest the eviction. These laws are further complicated by local Rent Control Ordinances which may provide more restrictions than the statutory scheme covering evictions.

The basic procedures, using one state as an illustration, are discussed herein:

  1. Three-day Notice - Generally a three-day notice is given to any tenant who has not paid the full rent in a timely fashion. When it is personally served upon the tenant, the tenant has three days in which to pay the rent, or the landlord can opt to commence an eviction. Tendering payment during this three day period will serve to forestall any eviction proceedings based solely upon non-payment of rent.

    Naturally, you must be personally served with the Notice, or it must be contemplated to be delivered to you, in order for this Notice to be effective. What you should be careful of in this area is a landlord who may hire an agent to serve the Notice and rely upon the representations of such an agent that you were personally served. You may be in the middle of eviction procedures before you have a chance to prove that you were not served properly.

  2. Thirty-day Notice - As indicated above, any tenant or landlord who does not have a written lease for a specified time period, e.g., 6 months, generally is presumed to have a 30-day tenancy. Thus, in many cases a landlord or a tenant can give thirty days notice to the other signaling the end of the term of the lease. Once again Rent Control Ordinances may restrict the landlord's right to give thirty days notice.

    This notice is generally given in writing and personally handed to the other party. Once it is given, the tenant must move out within thirty days. Any "holdover" after expiration of this time period may subject a tenant to the eviction process, or extra charges and/or damages, in the event another tenant is scheduled to move into the premises.

  3. Summons & Complaint - In order to remove a tenant, either after a three day or a thirty day notice [many states do not require that both a three day, and a thirty day notice be served first], the landlord must have prepared a Summons and Complaint and have personally served these upon the tenant. If the landlord has made repeated attempts to serve the tenant and has been unsuccessful, he/she may utilize a procedure called substituted service, usually consisting of: (1) repeated attempts, (2) posting the Summons and Complaint on the door of the premises, and (3) sending a copy of the Summons and Complaint to the tenant, at the premises, via First Class mail.

Answer. Once served, the tenant has only a certain number of days [in our example it is 5 days] in which to file a formal Answer with the clerk of the court listed on the Complaint. This Answer must specify what allegations in the Complaint are denied, and set forth any Affirmative Defenses. If an Answer is not filed within this time period, the landlord can obtain a default at a hearing. This default means the tenant must move, and the default will usually award the landlord any monetary damages he/she can prove to the court. Such a default can become a judgment against the tenant, and the landlord can pursue the tenant for the money, for up to 10 years.

It is not a good idea, despite common "tenant folklore," to default, since it can harm your credit, cause you to have problems renting in another building, and subject you to a judgement against you for actual money damages. Also, many landlords in major cities subscribe to weekly or monthly services detailing the actions of "problem" tenants. Being placed on this list may significantly impact your chances of leasing in the future. To file an Answer means you will contest the proceedings. You do not have to have a lawyer, but it is probably a good idea to be represented by a Plan Attorney, since you may not be familiar with the court proceedings and state or local rules of procedure. Not knowing these rules can cause problems for your case. Once the case is before the court, a judge makes a determination of whether the tenant or the landlord may win. The winner may also receive an award of damages, and attorneys' fees in some instances.

Usually, the cost of defending yourself is a substantial obstacle to tenants, since landlords usually have "attorneys on retainer" to handle their evictions. And, while most court proceedings favor the landlord overwhelmingly, if your state is one which provides an award of attorneys' fees, this may give you a significant weapon. Many Plan Attorneys who specialize in this area, can recover the attorneys' fees which you might have to expend to defend yourself. While no award can ever be guaranteed by an attorney, in many instances, if you have a strong case, you may wish to seek the counsel of a lawyer and determine the prospects of winning. Attorney fees may not be the barrier you originally thought, especially with your Plan Attorneys' rates.

The law in many states is significantly different than the illustration above, so be careful to keep this in mind when you are handling your own case. However, the availability of your Plan Attorney, and the initial consultation benefit, can be a valuable aid in deciding when to proceed in a landlord-tenant matter.

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