The eviction process is very technical, with hard deadlines and many opportunities to make mistakes. It’s a last resort if the relationship with the tenant has broken down and they’re breaching their lease. Many legal requirements must be met before asking a court to order a tenant to move out.
If renting property is your full-time job, or it’s something you do on the side to boost your income, you have limited time and energy. Save yourself the grief of “learning by doing,” going to court, filing papers, and risking losing at trial because you don’t understand landlord-tenant law. AWB Law, P.C. can work for you while you benefit from his knowledge and experience.
The eviction process has several steps, which vary depending on the tenant’s response.
- The tenant receives a written notice to do something by a deadline
You may start an unlawful detainer (eviction) case to get a court order that your tenant moves out if they:
- Don’t pay the rent on time or at all
- Breach the lease or rental agreement and won’t address the issue
- Damage your property and make it worth less money (committing waste)
- Become a serious nuisance to other tenants and neighbors despite being told to stop
- Use your property for illegal activities
- Remain after the lease expires
You might also evict a tenant if you:
- Want to live in it or have family members move in
- Cancel the agreement by giving proper notice, as spelled out in the rental agreement or lease
The eviction depends on the facts of the case and may be more difficult or impossible if the property is in an eviction-controlled area.
You cannot legally evict a tenant:
- Due to their sex, race, national origin, religion, marital status, number of children, sexual orientation, disability, job, or they’re receiving public assistance
- To retaliate against them because they complained you’re violating a government code, something is broken, taking lawful action against you, or calling emergency services
You cannot legally force tenants to leave by locking them out of the property, turning off their utilities, or threatening force to compel them to leave.
- You start an eviction case in court if they fail to do so and the tenant is served with the court papers
Fill out forms to start the case to start an eviction (unlawful detainer) case when your tenant failed to do what you asked in the notice and the deadline passed. There are different notices with different deadlines.
You’ll need to attach important documents to the complaint:
- A copy of the lease or rental agreement
- Written changes the parties agreed upon
- A copy of the notice given to the tenant
- A copy of written proof that the tenant was given the notice
- Any other documents supporting your claim that your tenant should be ordered out of the unit
There are at least four court forms to complete, possibly more, depending on the court. They must be filed in the superior court of the county where the property’s located. The court keeps originals, you need a copy for yourself, and there must be one for every tenant and person known to live on the property.
- The tenant has an opportunity to respond
Without having the required time frame to respond, if the case goes forward, they’d have valid grounds to appeal the decision.
- If they fail to respond by the deadline, you can ask the judge to decide the case without their input (default). If they file an answer to your complaint in time, either side can ask for a trial where a judge or jury will decide the case
After the tenant is served with two forms (the summons and complaint), they have five days to file a response (15 if they weren’t served personally). If the tenant’s answer isn’t filed on time, it’s a good idea to ask for a default judgment as soon as possible because the court must consider one if it’s filed before a default judgment’s ordered.
With a default, you can seek a Clerk’s Judgment of Possession and a Writ of Execution to regain your property. After you get them, bring the Writ to the county sheriff’s office so they can evict your tenant.
You should be sent a copy if an answer to the complaint is filed. You can file a request to set the case for a trial and serve the tenant with a copy. The court clerk will mail you a letter with a trial date. If the tenant disagrees with your request, they can file a counter-request and ask for a jury trial if you did not.
If your tenant takes the position that your complaint wasn’t filled out or served correctly, instead of filing an answer, they may file a:
- Demurrer: It states your complaint doesn’t include all the legal requirements or facts needed to prove they should be evicted. This can delay your case, and if they’re successful, you may need to start the process over again with a complaint meeting all the legal requirements
- Motion to Quash Service: It claims the summons and complaint weren’t served correctly. If they’re successful, you must serve them again. If you’re successful in defeating this motion, the tenant will need to file an answer quickly
These motions are often filed to delay the process and make it more expensive for you since they won’t definitively bring the process to an end. They’re an opportunity for the parties to negotiate a resolution.
- Your eviction case goes to trial
Once you know your trial date, it’s time to prepare whatever evidence you have to support your claim. That could be documents, photos, videos, copies of emails or texts, and testimony from witnesses. Make sure issues in your personal life (child care, freeing up time from work) are taken care of so you can focus on the trial.
A trial lets you tell your side of the story and explain why the tenant should be evicted. It’s not a time to be angry or emotional, no matter how bad your relationship with your tenant. When you talk, speak clearly, and don’t assume the judge knows everything there is to know about your case. You’ll probably be nervous when you testify, so take a deep breath and take your time. Think for a moment before you speak.
If you’re successful, and the judge or jury rules in your favor, the judge signs a Judgment of Possession. If they’re an issue, you may also get a court order that the tenant pays you back rent, penalties, and costs, like filing and attorney fees (if they’re part of your lease or rental agreement).
You’ll have more forms to fill out, enabling you to get your property back, back rent paid and allow the sheriff to lock the tenant out of the unit.
If the judge disagrees with you and allows the tenant to remain, they must still comply with the lease or rental agreement. Depending on the lease or agreement terms and what the judge or jury decide, you may need to pay the tenant their costs, filing, and attorney’s fees.
- Your tenant is removed from the property
Thanks to the court order, the sheriff will serve the tenant with a Notice to Vacate, giving them five days to move out. If they fail to do so, the sheriff will remove them and lock them out. Many tenants leave the property on their own after they lose the trial, so physically removing the tenant and their possessions may not be necessary.
We’re Here to Help
If you’re a residential landlord with questions about evictions or you need legal representation, call the team at AWB Law, P.C. at (949) 244-4207 or complete our online contact form today.
