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Eviction Procedures

Navigation:  Home > Landlord & Tenant Law > Eviction Procedures

 

Notice to Quit: Most states generally require a landlord to provide a "notice to quit" a minimum number of days before the landlord can terminate the lease and begin the eviction proceedings. State laws generally require that the notice be in writing and contain certain information. Failure to follow the exact specifications may invalidate the notice to quit. If it is a tenancy at will, the notice to quit should provide at least 30 days notice. Some states require 30 days from the next payment date, thus, if rent is due on the 1st of month, and a landlord delivers the notice on the 15th of August, then the tenant should receive 30 days from the beginning of the next pay period - September 1st.

It is best to hand deliver notices to quit, though some states allow them to be mailed or left at the tenant's residence. If they are mailed, the landlord should use registered mail to ensure the tenant has received it. During an eviction proceeding, a judge could dismiss the case if the landlord cannot prove the tenant has received the notice.

In many states, a tenant also has a statutory right to cure, or an opportunity to correct the breach of lease within a certain number of days of the notice. If it is failure to pay rent, the tenant may have 14 days to pay the rent plus late charges. State laws differ on the dates.

After a landlord has served the notice to quit, and if the tenant does not leave, or quit, the premises, the landlord must serve the tenant with a summons and complaint. If there are multiple tenants, each must be served. If the tenant is not served with a summons, the eviction action can be thrown out of court.

After an a summons has been delivered, the landlord and tenant must attend an eviction, or summary process, hearing. If the landlord is successful, a judge will issue a writ of eviction, and a sheriff can execute the writ and physically remove the tenant and his or her possessions.

In most states, it is the landlord's burden to prove the breach of lease. So, a copy of the lease, plus evidence to prove the breach is essential. Not only must the breach be proven, but the landlord must also prove all the statutory procedures were followed - such as serving the notice to quit and summons within the appropriate time limits.

There are several defenses a tenant can lodge at an eviction, for instance, that the property was uninhabitable, that the tenant cured the breach (by, for example, paying the rent), or that the landlord "waived" the breach. A landlord "waives" the breach by, for instance, accepting payment of rent after serving the notice to quit. If the landlord fails to mention that rent is for "use and occupancy" only, then the tenant might be able to prove waiver. Again, check your state laws.

Moreover, an eviction proceeding or unlawful detainer, is only used for removing the tenant from the premises. A landlord might have to file another lawsuit for unpaid rent or damages if those issues were not addressed in the unlawful detainer action.

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