eviction process can be time-consuming and expensive, and a source of confusion
for many landlords. Being (and staying) informed about the eviction procedure
for your individual state is not only proactive but crucial to successful
property management. Each state has its own set of eviction laws and
regulations, and in many cases, eviction procedures may also be set by each
jurisdiction as well. To make matters worse, the eviction terminology varies by
location as well, known by phrases such as: unlawful detainer, forcible
entry and detainer, summary possession, summary dispossess, forcible detainer,
ejectment, and repossession.
WARNING: Before understanding the legal process for evicting a tenant, it's important that landlords understand that there is no other legal way to remove a tenant. A self-help or illegal eviction is when a landlord decides to take matters in his/her own hands without following the procedures prescribed by state and local law. To reiterate, it is ILLEGAL for a landlord to try and remove a tenant without use of the court system, and it should never be attempted, no matter how dire a situation may be. Landlords should never do anything like:
· Changing a lock
· Shutting off utilities or permitting a utility to be shut off
· Removing any of the tenant's personal property from the premises
· Threatening or using force to make a tenant leave
· Harassing a tenant
While the details of the process vary as mentioned above, generally speaking there are five steps to take in order to evict or have your tenant physically removed from the premises. There may be more or less steps depending upon current laws.
· Step 1. Serve Eviction Notice
· Step 2. File in Court for Eviction
· Step 3. Court Hearing
· Step4. Writ of Possession
5. Lock out - Eviction
Once you become aware
that your tenant is violating the rental- or lease agreement, you must then
serve that tenant with, in most cases, written notification. Although the most
common tenant violation is non-payment of rent, the lease violation could be
anything, such as keeping an unauthorized pet, permitting an extra person to
move in without permission, noise problems and many, many more. The type of
notice largely depends on the violation that has occurred and the specific
state landlord tenant law.
Notices are labeled differently depending on the state, such as "Notice To Quit" or "Demand for Possession", and each state has specific criteria and timeframes for eviction notices (see eviction notices for copies of NH’s Eviction Notice). In most cases, the notice gives the tenant the right to cure or fix the violation (i.e. pay the amount due when non-payment is the cited issue) before an eviction filing will occur while others just ask the tenant to vacate without the opportunity to fix or cure the problem.
Providing and serving your tenant proper notice is required before filing for eviction in court. If you are not comfortable or experienced in eviction then using a qualified attorney or eviction specialist can save time, money and aggravation.
If the tenant repairs the lease violation or vacates the leased premises within the prescribed period, then the process ends there. If the tenant fails to do either, the landlord must then file an official "Complaint" or "Summons" with their local district court. The appropriate court can be either the location of the leased premises or the owner’s residence. It is wise to bring along copies of any leases, addendums, disclosures, notices, rent ledger or any other information you may have.
Once the landlord has submitted the required paperwork to their local court, the court will process it and schedule a hearing date. The time between filing in court to getting a court date varies greatly between different court jurisdictions. In a small rural town, it may be only a week or so whereas in larger cities or counties, it could be months. It is critical that you file your complaint as soon as the notice period expires and to make sure all procedures are followed to avoid unnecessary delays.
On the date of the
eviction hearing, the landlord and/or their attorney or agent (such as a
property manager or eviction specialist) must appear in court to explain the
reason(s) for the eviction. The court has sent the tenant a notice to appear
for the eviction hearing, so the tenant will often appear in court to contest
the eviction and share their side of the story, or they may simply decide not
to appear. At the hearing, it's important that the landlord provide as much
supporting documentation as possible, to show that they have just cause to
evict. For example, if the landlord has photos or other evidence that the
tenant is keeping a dog in a leased property that forbids pets, they should
bring that evidence to court.
It's also worth noting that the outcome of the eviction hearing is determined solely by the judge's personal discretion. Even if the landlord is technically within their legal rights to evict, the judge may decide that the landlord must undergo additional steps, and file a second time for another eviction hearing. It's critical that the landlord be courteous, professional, and well-organized for the eviction hearing, and that they persuade the judge to rule in their favor. The optimal outcome of the eviction hearing is that the judge rules in favor of the eviction to proceed.
A "Writ of
Possession" is a document distributed by the court when a judge rules to
return possession of the rental property back to the landlord. The landlord
should make sure there are no specific requirements to obtain or serve a Writ
of Possession. Most often, a sheriff or constable will serve the tenant with
the Writ of Possession, informing them that they are to leave the premises by a
certain date and time or they will be forcibly removed. Writs of Possession are
governed by state and local laws, which differ from jurisdiction to
Once an actual eviction date (also known as a lock-out date) is scheduled, the tenant ideally vacates the leased premises before the scheduled date, but doesn't always. On the date of the eviction, the sheriff will arrive at the scheduled time, and supervise the landlord's forced entry into the leased property. It's important to note that it's the landlord's responsibility to actually enter the property, whether with a key or a locksmith. If the tenant remains inside the leased premises, the sheriff will remove them, but it is the landlord's responsibility to remove the tenant's belongings. NH Law states that landlords must store tenant’s belongings for 7 days. The damages for violating the 7-day requirement is limited to actual damages plus costs and reasonable attorney fees.
The landlord should
arrive early to the eviction, with several contractors or other workers to help
remove any possessions, and a means of entering the property if they don't have
a working key. The locks should be changed on the spot, to prevent the tenant
from regaining entry to the leased premises, and the contractors should
immediately perform any necessary maintenance or repairs necessary for the
premises to be leased to the next tenant. The landlord should start advertising
for new tenants immediately, to minimize the vacancy period.
The two most important points a landlord should understand about evictions are that they must adhere to state and local laws and forms, and they must move immediately at every step of the eviction process, because it is can be a very long and expensive process. In addition to acting legally and quickly when handling evictions, it's critical that landlords practice prevention, by screening prospective tenants for credit, criminal, and eviction histories, because these histories tend to repeat themselves.