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Steps Necessary to Evict a Tenant by David Philipson, Esq.

Steps Necessary to Evict a Tenant

Steps Necessary to Evict a Tenant

There are three reasons for evicting a tenant:

1. Non-payment of rent;
2. Breach of Lease or Rental Agreement; or
3. End of a Lease or Rental Agreement.

With the exception of evicting a tenant at the end of a fixed term lease, the steps necessary to evict a tenant for non-payment of rent and for breaches of lease or rental agreements are the same.

First, a Notice has to be served upon the tenant(s). If you are evicting them for non-payment of rent, a 3-Day Notice to Pay Rent or Quit must be served. If you are evicting them for breach of the lease, a 3-Day Notice to Cure the Breach must be served. If you are evicting them for termination of a month-to-month rental agreement, either a 30-Day Notice or a 60-Day Notice must be served, depending on whether the premises have been occupied for more than one year. No notice is required to be served at the end of a fixed term lease.

Assuming that the rent is not paid, the breach of the lease is not cured, or the premises are not vacated after service of the notices discussed above, the next step to evicting a tenant is to file a lawsuit to get a judicial order of eviction. This is called an Unlawful Detainer lawsuit. You must obtain a court order to evict a tenant and to do that, you must file an unlawful detainer lawsuit. You may not use self-help (i.e. changing the locks while they are out of the home) to simply throw the tenant out.

The unlawful detainer lawsuit must be served upon the tenant. If the tenant does not answer the lawsuit within the time permitted by law, you may apply to the court for a default judgment. If the tenant does file an answer within the time permitted by law, you must then request a trial. At the trial, the judge will listen to both sides of the story and make a decision. Assuming that you win, a judgment will be entered in your favor.

Once again, you may not simply use self help to evict the tenant once you obtain the judgment. For this you, will need the Sheriff. In order to have the Sheriff evict the tenant, it will be necessary to obtain a Writ of Execution from the clerk of the court where the judgment was entered. The writ of execution should then be delivered to the Sheriff who would then serve it upon the tenant. If the tenant does not vacate after service of the writ of execution, a lockout date will be scheduled. A Sheriff will show up at the premises. You will show up at the premises with a locksmith. The locksmith will open the door. The Sheriff will enter the premises to make sure that it is safe and that nobody is hiding in a closet with a gun. Thereafter, the locksmith will rekey the locks and the Sheriff will put a notice in the window stating that anybody who enters the premises without your permission will be subject to arrest for trespassing.

As you can see, evicting a tenant is not a simple process. If you serve the wrong type of notice, for example, and thereafter file the unlawful detainer lawsuit, the tenant could win dismissal of the entire lawsuit and force you to start from the beginning of the process, resulting in lost time, money, and energy, not to mention months of free rent for your defaulting tenant. However, if you follow the recipe described above correctly, you will obtain the desired result.

At the Law Office of David Philipson, we want to make the process of evicting your tenant as easy and efficient for you as possible. With over forty years of experience handling these types of matters, you can feel assured that our attorneys will get your desired result the first time.

Evicting somebody, whether it is for non-payment of rent, breach of lease, or end of the lease/rental period, is not like a small claims case. Furthermore, evicting somebody through the “self-help” method of simply throwing their stuff onto the front walk and rekeying the doors will get you sued by the tenant in a “Forcible Detainer” lawsuit, which could result in a very large money judgment being entered against you. Given the complexities of the procedures involved, it is best to hire an attorney to help you evict your tenant with the least amount of stress, waste, and hassle for you. Contact the Law Office of David Philipson today for your free consultation today if you need to evict your defaulting tenant.