Landlord 9 step Guide to Tenant Eviction
by: Alex King
- Non-Payment of Rent for Residential properties -
“Residential” includes a house, apartment or condo. This guide
is NOT to be used for commercial type property.
STEP ONE:
Prepare and Serve a notice demanding payment of
rent or possession of the premises……..
This notice is sometimes referred to as a “Notice to Pay or Quit” and can be found online in many different formats.
Since statutory laws of each state are different, the Notice must be served according to the laws of that particular state. Some states require a 3-day notice and some require as much as 30 days.
Sometimes a written agreement ( lease agreement ) contains rules for the length of time necessary to serve the Notice. If this period is longer than the statutory time then you must adhere to the stated time in the agreement.
Service of the Form ( Notice to Pay or Quit ) may be handled in various ways. The sheriff , certified mail, leaving a copy on the premises, or hand delivery. This author recommends that you enlist the services of the sheriff. It helps establish the necessary chain of events in the event of eviction.
If the Tenant fails to act upon the Notice within the time period, the Landlord has two options. The Landlord may elect to proceed with the filing of the “Complaint” for eviction, in which case the lease may be considered terminated. If the Landlord does not elect to proceed with termination or eviction but instead agrees to accept rent after the termination date stated in the Notice, the lease is generally reinstated.
If the Tenant subsequently fails to pay rent, the entire process must be started again.
STEP TWO:
File Complaint……..
The landlord shall file the original Complaint and sufficient copies of Complaint for each tenant with the County Clerk. The County Clerk’s office generally requires a copy of the Notice with proof of service ( here is where the service by the sheriff creates credibility )and a copy of the lease, if one exists. The Complaint must be signed by the landlord in the presence of a deputy clerk or must be notarized by a notary public.
STEP THREE:
Issuance of Summons……..
After the Complaint is filed, the Clerk will issue an Eviction Summons. A copy of the Complaint, the Notice, and lease (if one exists) will be attached for service on the tenant. In most states the Sheriff or a private process server can serve the Summons.
STEP FOUR:
Certificate of Mailing……….
If the tenant cannot be served either personally or by substitute service, the summons can be served by posting
(attaching to a conspicuous part of the premises).
If this occurs, the landlord must request the Clerk to mail notice to the tenant by “Certificate of Mailing.”
There must be substantial proof the Tenant received the complaint as is aware of the entire process.
STEP FIVE:
Answer by Tenant……..
The tenant has a certain amount of days (exclusive of Saturdays, Sundays and holidays) as prescribed by local law after service of the Summons to file an answer.
If an answer is filed and monies are deposited, the landlord must contact the Court to schedule a hearing.
STEP SIX:
Default……..
If the tenant fails to answer the Summons, the landlord may file a Motion for Default with the Count Clerk and proceed with obtaining a Final Judgment for Possession and obtain a Writ of Possession.
Upon the default being entered by the Clerk, the Judge will then review the file and enter the Final Judgment for Possession and direct the Clerk to issue the Writ of Possession.
STEP SEVEN:
Final Judgment…….
A completed Affidavit of Costs must be submitted to the Clerk along with the original Final Judgment for Possession that you are requesting the Judge to sign. You will need to furnish the Clerk with a copy of the Final Judgment for each of the tenants and yourself, along with self addressed stamped envelopes to the tenant(s) and yourself for mailing the conformed copy of the Final Judgment once the Judge has signed it.
STEP EIGHT:
Writ of Possession……..
The Writ of Possession must be presented to the Clerk for issuance after the Final Judgment of Possession has been entered by the Judge. The Clerk will need an original and two copies. The Writ will describe the premises and command the Sheriff to put the landlord in possession of the dwelling. The Sheriff must serve the Writ.
STEP NINE:
Notice of Dismissal……..
If your eviction case becomes settled prior to the court entering a Final Judgment, you must file with the Clerk a Notice of Dismissal. This will eliminate the Court and Clerk to notice you at a later date to dispose of your case that was never properly settled by the filing of a Final Judgment or Notice of Dismissal.
Please remember that the County Clerk or any of its deputies are prohibited from giving legal advice. If you feel that you cannot file an Eviction on your own behalf, you should consider seeking legal advice from an attorney.
After providing the above disclaimer, let me say that the process is easier then it sounds. Although the County Clerk is prohibited from giving legal advise, they will always provide the necessary information to facilitate the process.
