The first step in most eviction cases is the Eviction Notice. This “for cause" notice typically occurs when a tenant fails to pay rent, is too noisy, is selling narcotics, or has does something that violates an important lease cause.
In other instances, a “without cause" notice is necessary. These include 30, 60 and 90 Day Notices.
The 30 Day Notice can only be used to terminate a month-to-month tenancy of less than one year with the 60 Day Notice used to terminate a month-to-month tenancy of a year or more. Neither can be used to terminate a fixed term lease agreement and should state a reason for termination other than the rental agreement allows for the termination.
Lastly, if the tenant lives in federal or state subsidized housing, the landlord must give the tenant a 90 Day Notice and must explain the reason for ending the arrangement.
After the Eviction Notice is prepared, it must be served on the tenant. This is done personally (handing the Notice to the tenant), by substituted service on another person (leaving the Notice with a person of suitable age and discretion at their home or work and mail a copy of the Notice), or by posting and mailing (taping or tacking the notice in a conspicuous place and mailing a copy to the rental address).
The three-day period begin on the first day after the notice was served. If the third day falls on a Saturday, Sunday or holiday, the three-day period will not expire until the following Monday or non- holiday.
By contrast, the 30 or 60 Day Notice can be served by any of these methods, or by certified mail with return receipt requested.
Upon completion of service of the Notice, the Proof of Service must be completed evidencing that the Notice was served properly. If the tenant fails to cure the default, the Proof of Service will be filed with the Court as part of the eviction lawsuit.
When the tenant fails to respond to the eviction Notice, the next step for the landlord is to file an unlawful detainer, or eviction lawsuit. The landlord is the Plaintiff and the tenant(s) are the Defendant(s). This document will be prepared by our law firm.
An eviction lawsuit is a “summary" court procedure. This means that the court action moves forward very quickly and the time to respond is very short.
Sometimes, people who are not parties to the rental agreement move into the rental unit. Most refer to these people as “unnamed occupants" but we refer to this person as “Uncle Bob." The landlord does not know Uncle Bob lives there and Uncle Bob may or may not be paying rent to the Tenant. If the landlord files the eviction lawsuit and does not include the Prejudgment Claim of Right of Possession for Uncle Bob, the Sheriff cannot lawfully evict Uncle Bob and the landlord must start over. By serving Prejudgment Claim of Right of Possession with the eviction lawsuit, a landlord avoids this problem.
Similar to the Eviction Notice, the lawsuit must be served personally, by substituted service, or by posting. In order to serve the lawsuit by posting, there are several intermediate steps and the landlord must apply for a court order allowing for service by this method.
Depending on the actions or inactions of the tenant, Step Seven will likely be one of the following:
After the eviction lawsuit has been served, the tenant generally has five (5) days to respond. This time period can be longer if the tenant is served by substituted service or service of summons by posting. These methods of service typically add another ten (10) days to the time to respond.
If the tenant fails to timely respond to the eviction lawsuit, the landlord can file a Request for Default with the Court. This effectively ends the case and allow for the landlord to proceed with the actual eviction and lock-out of the tenant. The tenant can file a motion to set aside the default, but this is a pretty rare event.
A tenant has a variety of options when responding to an eviction lawsuit. The tenant can file an answer, a demurrer, a motion to strike and/or a motion to quash service of the summons. When the tenant responds with anything other than an answer, the landlord can either oppose the motion or take the necessary steps to cure the alleged defect.
Discovery is the opportunity for parties to a lawsuit to ask questions in writing and demand copies of documents. In most instances, the landlord will not serve discovery because they already have all the necessary information for trial. However, tenants will often serve discovery requests simply to buy more time. Regardless, the landlord still has to respond.
Once the tenant responds, the landlord needs a trial date as soon as possible. After all, the longer the tenant remains on the property, the more it costs the landlord. The “At Issue" form requests that the clerk set a trial date as soon as possible.
If the case proceeds to trial, we will work with the landlord to make sure all the necessary and admissible evidence is ready for Court.
The trial usually takes 1-2 hours. The landlord, as the Plaintiff, carries the burden of proof that they are entitled to possession of the property, and possibly money damages for past due rent.
If you prevail at trial, the Court will sign a judgment and issue a writ of possession. The judgment grants the landlord possession and money damages for past due rent, costs and attorneys’ fees (if provided for in the rental agreement). The writ of possession orders the sheriff to remove the tenant if the tenant does not leave voluntarily. If the tenant fails to leave, the sheriff is authorized to physically remove and lock the tenant out.
The letter of instruction provides certain information to the sheriff, including the name of the tenants and the address of the property where the eviction will occur. The actual date of eviction usually depends on the sheriff’s schedule for evictions in the area.