An eviction process usually starts when a tenant who is under a lease agreement, written or verbal, breaks any part of the terms and conditions of that agreement. The process typically begins with the landlord giving notice that the lessee (i.e. tenant) has violated a portion of the agreement. Every State has their own process which is sometimes referred to as an “unlawful detainer.”
- New Hampshire
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Rhode Island
- South Carolina
- South Dakota
- West Virginia
Non-Payment of Rent – Typically this notice is different from all other types in the State as it only relates to the violation of not paying the monthly amount on-time. States offer either a number (#) of day’s notice to pay the rent owed including any penalties added on. If the payment is not made within the time stated the tenant will usually have to vacate the premises while still owing the landlord the funds.
Non-Compliance – Notice is given to a tenant that has violated any part of a lease (except any terms that are in relation to the payment of rent). There are two (2) types of compliance notices;
Curable – Allows the tenant time to “cure” or fix the violation within a certain amount of time or else they must leave
Incurable – Does not allow the tenant to “cure” the issue and they must move-out within the timeframe suggested in the notice.
Lease Termination Letter (Cancel Month-to-Month Lease) – If the landlord and tenant have a rental arrangement where either may cancel at anytime a letter stating a termination date may be used to cancel the lease. The notice must be given with the State time-frame (if any), and once given, to landlord or tenant, the time period begins. Usually the notice period is thirty (30) days.
How to Evict a Tenant
To evict a tenant a landlord first needs to identify which term or condition of the rental agreement they are violating. If it is a non-payment issue, the landlord will need to complete a notice for the non-payment of rent, if it is a non-compliance issue, the landlord will need to download the standard eviction notice for their respective State.
Step 1 – Choose the Notice Type
Download and complete the eviction notice that best serves the landlord’s situation.
- Non-Payment of Rent – For the late payment of rent.
- Non-Compliance – To notify the tenant of a material breach.
- Lease Termination Letter – To cancel a month-to-month lease.
The above forms are standard notices given to a tenant which usually acts as a warning of something they have not done, such as forget to pay rent or if they played the music too loud on a weekend. This gives the tenant official notice that they better get in-line with their lease or the landlord will have to take matters into another level by enforcing the local laws.
Step 2 – Sending Notice (Certificate of Service)
After completing, the landlord will now need to send the lessee notice. This is recommended to be completed using the mail with a Certified Letter (with return receipt) although some States allow for this to be completed by slipping it under the door of the premises or another legal route.
Best Method (recommended)
USPS – The United States Postal Service (USPS) is the best option as it will prove that the letter was mailed and received by the tenant with delivery dates. This will be detailed in the “return receipt” that will be given to the sender after the form has been successfully delivered. If the tenant does not respond to this notice, the return receipt may be used later in court to show that an effort was made to contact the tenant about the lease violation or termination.
Delivering to Tenant – Other than certified mail this is the best option. When delivering to the tenant it’s imperative that the landlord obtains a signature to prove it was delivered and accepted by the tenant.
Hanging on Door – This is not recommended although is considered legal in some States. The issue with delivering the notice by hand without acceptance is that it may not prove in the court of law if it becomes the landlord’s “word” versus the tenant.
Other Mailing Providers – Some landlords will opt to using another mailing provider, such as FedEx or UPS, believing that all carriers are the same. This is not true. According to a case filed in 2007, Leatherbury vs. Greenspun, the court determined that certified mail is only considered legal when sent via the United States Postal Service (USPS).
Step 3 – Resolve the Matter with the Tenant
If the notice is curable the tenant has a time-frame to repair the issue, such as repay the rent, fix the damage on the premises, sound violations, etc. If the tenant does not fix the issue then they will be required to leave the property or face an unlawful detainer.
If the matter is complicated it is always best to level rather than go the eviction route as they can be costly and the judge may view the tenant’s situation and not approve the re-possession by the landlord. For example, if the tenant is behind on their rent it is best to make a payment plan that is reasonable for both parties.
If the type of notice is incurable then the tenant must leave the property and has no option other than to vacate the premises. This is common if the tenant has made the same violation in the past or if the tenant was found conducting illegal activity on the property.
Step 4 – File Eviction Lawsuit
If the tenant does not leave the property or fix the issue stated in the eviction notice then the landlord will have to file a Complaint (or Petition) and Summons with the court in the jurisdiction of where the real estate is located. There is usually a filing fee and it may be submitted either by the landlord or their attorney.
Step 5 – Serve the Tenant
After the eviction lawsuit has been filed the clerk will administer copies of the filing along with an Answer that the landlord must give to the tenant. This will notify them that a legal case has been filed against them and allow them to state their response through the Answer which should be filed before the hearing date so the court is able to review all the evidence.
The notice that a lawsuit has been filed against the tenant is known as “serving” the defendant through the State process. This is usually completed by using the Sheriff’s office or sending through Certified Mail (Return Receipt) as instructed in Step 2.
Step 6 – Attend Hearing
The landlord will attend the court hearing along with the tenant, now the defendant. Both parties are instructed to have all available documents at their disposal along with any evidence that they believe will help their chances in determining the outcome they deem fair.
Ruling in the Landlord’s Favor
If the judge rules in the favor of the landlord the tenant will either be instructed to leave the premises (Writ of Possession) by a certain date or have the right to cure their leasing arrangement. If the tenant does not obey the judgment of the landlord they will be considered in illegal possession of the premises and the landlord will be able to hire the local sheriff to change the locks and begin moving the tenant’s personal property out of the space.