The Eviction Process
If the tenant commits a material breach of the lease, such as not paying rent, and the landlord wants to start the eviction process, the landlord must provide the tenant with a written notice that sets forth the breach. Assuming the tenant does not cure the breach, the landlord can file an eviction action, which is a lawsuit to terminate the lease and recover the home from the tenant. It should be noted that a tenant’s inability to pay rent is not a legal defense to the lawsuit, and the judge cannot give the tenant more time to pay even though the tenant is having financial problems.
Before the Hearing Date.
When the lawsuit is filed, the court will schedule a hearing date before the judge that, by statute, is not more than six nor less than three days from the filing date. If the tenant disagrees with the allegations in the lawsuit, the tenant can file a written answer. If the tenant believes that the landlord has not fulfilled the landlord’s obligations under the lease, the tenant can file a counterclaim. Both sides can hire their own attorneys to represent them, but the court will not provide an attorney to either side.
Hearing and Trial
If the tenant fails to appear at the hearing and the landlord or the landlord’s attorney is present, a default judgment will likely be entered against the tenant that will require the tenant to vacate the home in, at the most, five days or, at the least, 12 hours (i.e., based upon a finding of a material and irreparable breach of the lease).
If both sides are present when the judge calls the case, the judge will ask the tenant if the allegations in the lawsuit are true. If the tenant says “no” and/or believes that the landlord has not fulfilled the landlord’s obligations under the lease, the tenant will be permitted to give a brief explanation of the tenant’s position. If the position is a legal defense and/or claim, the judge will need to hear testimony and take evidence from both sides and make a decision after a trial.
At the Trial.
To support each side’s position, each side can present any necessary witnesses and documents for the judge to consider in reaching the decision. If the judge decides in favor of the landlord, the judge will grant the landlord a judgment that can set forth damages and will require the tenant to vacate the home in, at the most, five days or, at the least, 12 hours. If the judge decides in favor of the tenant, the judge will dismiss the lawsuit and can award the tenant a judgment that also can set forth damages and will permit the tenant to continue to live in the home.
After a Judgment
Either party can appeal a judgment and has five days to do so after the judgment is entered.
If the tenant is appealing the judgment and wants to remain in the home during the appeal, the tenant must post a bond and pay the home’s rent to the court as it becomes due. If the tenant prevails, the lawsuit will be dismissed and the monies will be released.
If the tenant loses or is not appealing the judgment, the tenant must vacate the home in accordance with the judgment (unless the landlord permits the tenant to remain in the home). If the tenant fails to vacate the home in accordance with the judgment, the landlord can apply to the court for a writ of restitution to remove the tenant and all other occupants from the home. The writ of restitution is served by a constable or sheriff, who will direct the occupants to leave the home. The tenant can avoid a writ of restitution and the potential disruption of a forced removal by, before the deadline set forth in the judgment, vacating the home and returning the keys to the landlord. This would peacefully end the tenant’s possession of the home.
Conclusion
When it comes to disputes over the turnover of the home, it is advantageous for landlords and tenants to try and settle their disputes before resorting to the court system. However, if the sides are unable to settle their disputes, it is helpful to understand and properly follow the eviction process. By doing so, there can be a peaceful ending to the tenant’s possession of the home.
