SHERIFF'S CORNER: The Basic Eviction Process
I want to first thank everyone for the overwhelming support this past week. Taking close to 70% of the majority vote is reassuring and humbling at the same time. Communication, relationships, integrity, transparency, effectiveness and common decency surely have paid dividends. When everyone is treated fairly and equally, it definitely shows.
I look forward to the next four years in serving this great community. It takes all of us working together to accomplish great things.
One of the most common questions that are always asked over the years are Landlord-Tenant laws. Can they kick me out for this? Can I change the locks? My landlord hasn't fixed this or that. My name is on the property. My roommate won't leave. And the questions go on from there.
In this edition of the "Sheriff's Corner," I briefly discuss the Landlord-Tenant Eviction Process. (Remember there are many variables when it comes to renting and occupancy. It is always recommended to seek the advice of an attorney for any related questions. This is a very basic overview.)
WHO GETS EVICTED?
It may seem pretty cut and dry when it comes to established landlord-tenant relationships such as being a landlord who has an agreement to rent out a house, duplex or apartment. However, there are other occupants that fall under this same criteria that you may not be aware of. For example: Those who may be roommates, who will not leave; former lovers who want to hold on or be a pain, or friends or family members that have been sleeping on the couch or in the basement.
There is really no established period of time that a person has to be living somewhere to have occupancy rights. The general rule, or good baseline to follow, is that if someone moved in with the belief that they would be staying there for an extended period of time ... would qualify them as a tenant. This also generally applies to anyone who has occupied a dwelling in good faith with the belief they had the legal right to be there.
If someone does not leave on their own accord, then the eviction process must be followed to remove someone or take possession of real property (real estate, dwellings, etc.) in a legal fashion.
REASONS FOR EVICTION
You must have cause to start the eviction process. Below is the list of qualifying circumstances:
1) Nonpayment of rent.
2) Extensive and continuing physical injury to property.
3) Serious and continuing health hazard on/at the premises.
4) Illegal drug activity on the premises and a formal police report filed (a lease provision must allow for such termination).
5) Physical violence or threat of violence to another person on the landlord’s property by a tenant, member of the tenant’s household, or person under the tenant’s control, and a formal police report filed.
6) Violation of a lease provision and the lease allows for termination.
7) Possession by means of a forcible entry, holds possession of premises by force after a peaceable entry, or comes into possession of premises by trespass without color of title or other possessory interest.
8) Holding over after the natural expiration of the lease term.
9) “Just cause” for terminating the tenant of a mobile home park (Ex: Violating park rules, etc.)
10) “Just cause” for terminating a tenant of government-subsidized housing. (Ex: Not compiling w/ eligibility requirements, etc.)
11) When a person continues in possession of premises sold by virtue of a mortgage or execution.
12) When a person continues in possession of premises sold and conveyed by a personal representative under license from the probate court or under authority in the will.
To start the process you must first send a formal letter to the tenant or individual, sometimes referred to as a "Notice to Quit" or "Demand for Possession." Depending on the reason for the eviction, there are certain days you must give before starting any civil or legal action.
• A 24-hour Notice is required for the following reason: illegal drug activity on the premises and a formal police report filed (a lease provision must allow for termination).
• A 7-day Notice is required for the following reasons: 1) nonpayment of rent; 2) extensive and continuing physical injury to property; 3) serious and continuing health hazard; or 4) injury or threatened injury to another person.
• A 30-day Notice is required for the following reasons: 1) violation of a lease provision and the lease allows for termination for that violation; 2) forceful entry or peaceful entry, with forceful stay or trespass; 3) holding over after natural expiration of lease term; 4) “just cause” for terminating tenant of mobile home park; or 5) “just cause” for terminating tenant of government-subsidized housing.
The eviction notice must include certain information or the notice is not proper. While many district courts provide standard eviction forms, a letter can accomplish the same as long as it contains all of the following: 1) tenant’s name; 2) address or rental property description; 3) reason for the eviction; 4) time to take remedial action; 5) date; and 6) landlord’s signature.
The notice MUST be delivered: 1) in person to the tenant, or 2) at the rental property, to a member of the tenant’s household — of suitable age — requesting that it be delivered to the tenant, or 3) by sending it through first-class mail addressed to the tenant.
During this time period the matter may get resolved and no further action in needed.
TAKING IT TO COURT
So, you covered everything above and the person still won't move out. Then it is time to start the legal process. This requires taking your above Eviction Notice, and any other supporting documents, to the court house and filing a L-T Summons and Complaint. This will come with a court date, which a copy must be served upon the tenant. Depending on the reason for the eviction, you may want it to be served a certain way.
1) Personally; or
2) Sent by mail — certified, return-receipt, restricted delivery; or
3) At the rental property, to a member of the tenant’s household — of suitable age — requesting that it be delivered to the tenant; or
4) After diligent attempts at personal service, by securely attaching the papers to the main entrance of the rental property unit.
The Summons and Complaint has to be served by an uninterested party, and the proof of service must be notarized. Can you get your Uncle Larry or your best friend Cletus to serve it? Yes. Can the court provide a server for you? Yes.
If you use and independent process server or court officer, remember there is a service fee that you will be billed for but in most cases can be added to the judgment. Also, if you are evicting someone for nonpayment, generally it will need to be served personally for you to obtain a money judgment if the tenant does not show up in court.
So, you appear in court and the verdict is in your favor and the tenant needs to leave. The presiding official will give them a certain number of days to vacate the property. If they still don't leave after this date, then you must go back to the courthouse and file for an Order of Eviction (formally known as a Writ of Restitution). Once this is signed by the presiding official, this will then be issued to a court officer or deputy sheriff to physically or forcibly throw them out as well as all of their personal property.