How Evictions Work

What Is Eviction?

Eviction is the civil process by which a landlord may legally remove a tenant from their rental property. Eviction may occur when the tenant stops paying rent, when the terms of the rental agreement are breached, or in other situations permitted by law.

Evictions in the United States are governed by individual states and certain municipalities. Landlords are required to inform tenants they are being evicted with a notice that specifies the reason for the eviction and the number of days before eviction proceedings begin.

Key Takeaways An eviction is the court-ordered removal of a tenant from the property where they reside.A landlord may decide to evict a tenant for nonpayment of rent, damages, illegal activity, violating the terms of a lease, or if the landlord wishes to take possession of the property.The eviction process normally begins with a notice from the landlord that asks the tenant to remedy certain conditions.If the tenant doesn’t provide a remedy, then the landlord can begin eviction proceedings through a court.Judges hear testimony, review evidence, and decide whether to evict or deny a landlord’s request.

Notice to Vacate

Before a landlord can start legal eviction proceedings, they must give the tenant proper notice in writing. A written notification that the landlord would like the tenant to move out because the tenant has broken the lease is called a "notice to vacate." Texas law is very specific about how the notice must be given to the tenant and what it must contain. The notice must include: The amount of time the tenant has to move out or fix a certain problem before an eviction suit is filed. This must be at least 3 days unless the lease specifically states otherwise. The federal CARES Act requires a 30 day notice if the property participates in certain federal programs or the property owner has a federally-backed mortgage. The notice can be given to the tenant in one of the following ways: In person to the tenant or someone in the household who is 16 years of age or older In person by affixing the notice to the inside of the main entry door By regular mail, certified mail, or registered mail, with return receipt If the rental does not have a mailbox and if there are things that would prevent the landlord from attaching notice to the inside of the main entrance (such as keyless security systems or dangerous animals), they may affix it to the outside of the main entrance. It must be sealed in an envelope with appropriate markings. The landlord must also mail it on the same day. If the notice is given in person or sent via the mail, the time given to move out before the landlord files an eviction suit starts running once it is delivered. If it is attached to the outside of the main entrance, the time starts running once the notice is affixed to the outside of the door, regardless of when the copy in the mail is delivered. Texas Law Section 24.005 of the Texas Property Code This section of the law describes the “notice to vacate” that must be given to a tenant before filing an eviction suit. It discusses how the notice must be given to the tenant and what information it should contain. Forms Texas real estate guide [electronic resource] Section 90.120 in volume 5 of this resource contains a form for a Notice to Vacate. Understanding the Law Eviction Notices for Nonpayment of Rent in Texas Legal self-help publisher Nolo has written this overview of the legal notice that is required before an eviction suit can be filed.

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Stage Five: Removal

In the fifth and final stage, after a court enters an eviction order, a tenant must vacate. This inherently traumatic process can be made even more so by the involvement of law enforcement. While a landlord cannot physically remove a tenant’s belongings or take steps to prevent the tenant from accessing the home, like boarding up the door or changing the locks—though they sometimes try—a landlord can ask the sheriff’s office to carry out the eviction.  

Natalie, another former client whose name I’ve changed to preserve attorney-client privilege, was named in an eviction action and quickly hired me to represent her through the process. After the case was filed, but before a judgment was entered, Natalie’s landlord attempted a “self-help eviction,” changing the locks and trying to move her things to the sidewalk. Natalie immediately called the police to stop the landlord. Initially the police were hesitant to intervene, incorrectly interpreting the complaint as a proper basis for the landlord’s actions. It was only after Natalie called me, and I spoke directly to the responding officer, asserting Natalie’s rights and educating the officer about the illegality of self-help evictions, that the police stepped in. As a result, the landlord failed in his attempt to illegally displace Natalie, and the case ultimately settled. Even at this last stage of the eviction process, tenants face challenges defending themselves and protecting their rights, especially without representation. 

When a Landlord Might Send a Notice of Termination for Cause

Although terminology varies somewhat from state to state, there are basically three types of termination notices that you might receive if you have violated the rental agreement or lease in some way:

  • Pay Rent or Quit Notices, which are typically given to someone who has not paid the rent. These notices give you a few days (three to five in most states) to pay the rent or move out (“quit”).
  • Cure or Quit Notices, which are typically given to someone who violates a term or condition of the lease or rental agreement, such as a no-pets clause or the promise to refrain from making excessive noise. Usually, you have a set amount of time in which to correct, or “cure,” the violation.
  • Unconditional Quit Notices, which are the harshest of all. They order the tenant to vacate the premises with no chance to pay the rent or correct a lease or rental agreement violation. In most states, unconditional quit notices are allowed only if you have:
    • repeatedly violated a significant lease or rental agreement clause
    • been late with the rent on more than one occasion
    • seriously damaged the premises, or
    • engaged in serious illegal activity, such as drug dealing on the premises.

What Happens after the Tenant is served with the Unlawful Detainer Lawsuit During the Eviction Process?

The Uncontested Case = No Court Appearance

In about half of the cases in a California Eviction Process, the tenant will not respond to the unlawful detainer lawsuit so that the landlord can have a judgment for possession entered by the Court. Once the court clerk enters the judgment for possession, the case is sent to the Sheriff’s office for lockout proceedings.

The Sheriff goes to the property and posts a 5-Day Notice To Vacate on the front door. If the tenants fail to vacate within that period of time, the Sheriff will return and physically lock out the tenants and possession will be restored to the Landlord. Change the locks so that the tenant cannot get back into the property.

Call us today! The Contested Case = Court Appearance(s)

The Contested Case = Court Appearance(s)

Some tenants may have legitimate defenses to an unlawful detainer action. In those cases, the tenant should win the case against the landlord if there are glaring deficiencies in the landlord’s paperwork or serious habitability problems with the premises.

The majority of tenants however, have little or no defenses to the unlawful detainer case and use the Court system to delay the eviction process to buy them more time. Unfortunately, if the tenant files an answer, the landlord must request a trial or Summary Judgment in order to move onto the next step.

Unfortunately, there are many eviction delay services available to the unscrupulous tenant and, for a nominal fee; the tenant can file various frivolous motions with the court to temporarily halt the eviction proceeding. Many times, the tenant will not even bother to mail a copy of the answer or other motion to the Landlord’s attorney in an effort to “sandbag” them. It is frustrating to be involved with a tenant who pulls these legal tricks and maneuvers but the California court system allows tenants to file the following response/motions regardless of whether there is any merit or truth in them.

Alternatives to Eviction

You can do one of three things after you receive notice that you're going to be evicted. You can attempt to "cure" or resolve the violation or problem; you can move out before you're officially evicted; or you can contest the eviction in court if you think you have valid cause.

Resolving the Violation

Talk to your landlord about the issue and try to work out a deal to avoid the eviction process if you're unable to pay your rent. Your landlord may be willing to create a payment plan for back rent, temporarily lower your rent, accept delayed payments, or otherwise come up with a plan that works for both of you.

You can also look for local agencies or government organizations that offer rent payment assistance. These types of aid are usually temporary, but it may be enough to help you get your finances in order to avoid eviction.

You might receive a notice to "cure or quit" for some lease violations. This means you have the option of resolving the violation within a set number of days to avoid moving out or being evicted. For example, the cure would be to immediately pay all the rent you owe if you're being evicted for failure to pay rent. Your roommate would have to move out if you're subletting to a roommate without permission.

You'll also probably have to pay the cost of any fees the landlord incurred to file the notice with the court, which is typically required.

Always obtain a written record that you've done so if you fix the problem after receiving a cure or quit notice within the time stated on the notice. You may have to present this as evidence in court if you're still summoned to appear.

Landlords are permitted to give you an "unconditional notice to quit" in some states. This means you don't have the option to remain in the property, even if you're able to resolve the violation.

Other states allow an unconditional notice to quit for some violations but not for others. For example, you must pay the rent you owe and move out or be evicted if you receive an unconditional notice to quit for failure to pay rent. You don't have the option to pay the rent and stay.

You might receive an unconditional notice if you're being evicted for nuisance activity, such as harassing other tenants, or for illegal activity, such as making or selling drugs on the property.

Moving Out Before Eviction

Your other option is to simply move out and avoid the court eviction process altogether if you receive either a cure and quit notice or an unconditional notice to quit. You must still pay any rent or fees that are still due to your landlord, however. You could be taken to civil court or have your debt turned over to a collection agency otherwise if you simply leave but don’t pay.

Going to Court

Your landlord will begin eviction proceedings against you in court if you don't move out or resolve the issue leading to your eviction within the amount of time stated on the notice. You may also choose to contest the eviction in court if you believe you're being evicted unfairly.

You must respond to any legal summons to appear in court, even if you've already moved out of the property or otherwise resolved the issue that caused the eviction to be filed. You should receive notice from the court if your landlord has canceled or withdrawn the eviction suit, but you should appear if you don't.

The judge will rule in favor of either you or the landlord. You'll have to move out within a timeframe set by the court, pay any rent you owe, and repay any legal fees that the court orders you to pay if the judge finds in favor of your landlord.

Defenses to an Eviction Notice

If you have been served with an eviction notice, you may have to start packing your things and looking for a new place to live. But first, you may want to look into your available defenses. These include the following:

  • Improper Notice – The landlord must follow legal protocol when carrying out an eviction, which includes sufficient notice and proper filing of the court papers.
  • Acceptance of Partial Rent – If your landlord accepts partial or late rent, he or she generally may not claim a lease violation (and thus initiate the eviction process) on the basis of the partial or late rent payment.
  • Poor Maintenance of Rental Property – In order to claim this defense, the tenant generally must have already given the landlord notice of the problem (such as a non-functioning toilet) and reasonable time to fix it.
  • Retaliation – Landlords may not retaliate against tenants who, for example, report code violations to the authorities.
  • Constructive Eviction – When a rental property become uninhabitable and the landlord is unresponsive to requests to remedy this, the tenant has effectively been "evicted" by being denied a habitable unit.
  • Fair Housing Act – Your landlord may not evict you on the basis of race, color, national origin, sex, religion, disability, or familial status (such as having children).

Click on link below to learn more about the eviction process and the rights of the parties involved.

Stage Two: Serving Notice and Summons to Appear in Court

If the issue is not resolved by the specified time, then the landlord will file what’s called an “unlawful detainer action” against the tenant in eviction court, formally asking the court to force the tenant to leave the property. Before that happens, courts must provide tenants with the chance to be heard before a judge or jury, and local laws specify how notice of the hearing, or summons to appear, must be provided—for example, in person versus posted on the door, which member of the household has to receive the notice, and what the notice must contain. Typically, this notice must include a description of the issue driving the eviction and the date of the hearing. 

Many tenants do not actually receive notice and can’t defend themselves against eviction proceedings they don’t know about. This was the case for Joseph Gelletich, who in 2019 was evicted from his home of nearly 30 years in Washington, D.C. Gelletich was not aware he was being evicted, never received a summons to appear in court, missed his hearing, and, as a result, automatically lost his case. He became homeless for a year.

Gelletich’s case is not uncommon. A recent investigation by DCist found that two notorious process servers routinely failed to provide tenants notice of eviction proceedings and then falsified records, leading to thousands of unlawful evictions. They delivered notice in person in fewer than 1 percent of cases, compared to other process servers in the city, who managed to find tenants at home 40 percent of the time. Process servers submit sworn affidavits confirming that notice was in fact provided, but a review of their affidavits over a two-month period found discrepancies—such as signature mismatch, incorrect personal information, and geographic impossibility, among others—in over 600 cases. 

These flaws likely would have resulted in dismissal of the case had judges scrutinized the affidavits thoroughly enough to detect them. “In practice, Superior Court judges who hear eviction cases nearly always take process servers at their word,” the investigation found. When judges fail to question affidavits or ensure that notices comply with procedural requirements, tenants are at risk of being evicted in cases they do not even know exist. 

Process servers get paid for each notice served, so taking more cases without actually serving notices results in higher compensation for less work. That practice also benefits landlords, who can quickly secure eviction judgments against tenants who don’t appear in court. 

Introduction

This article talks about the rights of renters in Maine. Each state has different laws protecting renters – this article only covers the law in the state of Maine. If you live outside of Maine and are looking for help or information, try the LSC Legal Aid Finder (link is external) or search for rights of tenants or renters in your state.

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