It is important to realize that changes may occur in this area of law. This information is not intended to be legal advice regarding your particular problem, and it is not intended to replace the work of an attorney.
This information applies to residential tenancies. The only way your
landlord can evict you is by using a court proceeding for eviction.
Your landlord cannot legally evict you by changing locks or stopping
your utility services, taking your belongings, or by the threat or
use of force.
Your landlord must give you a written notice in order to be able to
start an eviction case. The most common notices include 30-day notices
for “no cause.” With this notice, the landlord gives no
reason for the termination of the rental agreement (although such a
termination cannot be for an unlawful reason). Other common notices
include 30-day notices for cause; 72-hour or 144-hour notices for non-payment
of rent; and 24-hour notices for outrageous or dangerous conduct. If
you are still in the rental after the end of the period specified in
the notice, the landlord may then file the case.
The court proceeding is quite speedy; its main purpose is to determine
whether you have the legal right to keep living in the rental when
your landlord wants you to move.
To file an eviction case, your landlord must complete a complaint form,
which is available from the court clerk. Your landlord must give the
clerk a copy of the eviction notice and pay a filing fee. If your landlord
cannot afford the filing fee, he or she may ask the court to waive
or postpone payment of the fee. Most court clerks have a form for this
purpose.
After the court clerk receives the complaint and the filing fee or
deferral, he or she schedules the case for a preliminary hearing called
a first appearance. The first appearance is held seven days after the
tenant is sent a copy of the summons and complaint. The summons tells
you when the first appearance is. The clerk mails you the summons and
a copy of the complaint within one business day, and these documents
are also personally delivered to you or posted at the entry to your
home.
The purpose of the first appearance is to determine whether you have
a legal right to remain in the rental. If you do not show up, your
landlord should get an order giving him or her possession of the property.
If your landlord does not show up, the case should be dismissed. If
both sides show up, the judge will want to know if you intend to move,
if you and the landlord have settled the case, or if you want a trial.
In some counties, the court will ask you and the landlord to work with
a court mediator to work out your differences. If you request a trial,
it will be scheduled no later than 15 days from the date of the first
appearance.
To contest the case, you must go to the first appearance and file a
form from the clerk called an answer. This form lists a number of possible
reasons you may be able to win the eviction. You should check any that
apply and list other defenses if necessary. When filing an answer,
you must pay a filing fee. If you cannot afford the filing fee, you
can ask the court to waive or postpone payment of the fee.
Each side may be represented by a lawyer. If you do not fight the eviction
and your landlord has a lawyer at the first appearance, the court should
not require you to pay the landlord’s lawyer fees. The court
may give extra time for each side to find a lawyer if the tenant does
contest the case.
Along with showing the court reasons you should not have to move, you
may also bring up claims against your landlord called counterclaims.
These claims may entitle you to money from your landlord. It is advisable
to contact an attorney before attempting to bring a counterclaim in
an eviction.
If you wish to counterclaim or withhold rent, you may be required to
pay upcoming rent directly to the court. Also, the judge may require
you to pay rent into court as a condition of granting a postponement
of the trial for longer than two days.
Except for their speed, eviction trials are handled just like other
civil trials. Either side may request a jury. If the tenant wins, the
tenant is allowed to stay in the unit and may recover a judgment from
the landlord for any money the court decides is owed to the tenant.
If the landlord wins, the judge will order the tenant to move by a
certain date. The judge may order the losing side to pay the winning
side’s court costs and legal fees.
If you lose the case and you do not move by the date named by the judge,
your landlord can get an order directing the sheriff to enforce the
court’s judgment. The sheriff will post a notice at the rental
unit telling you to move within four days. If you do not do so, the
sheriff will return and remove you from the premises.
The eviction process is set up to be used by people who don’t
have lawyers. However, landlord-tenant law is surprisingly complicated,
and a lawyer may be able to suggest options, arguments, claims and
defenses that may help you win your case.
For more information, read Residential Eviction Notices and Residential
Eviction Defenses.
Legal editor: Edward Johnson, February 2009