I represent a lot of landlords around the area and while some are very familiar with the eviction process, others are not. Today’s article will focus on the eviction process and what to expect when a landlord wishes to terminate a lease agreement with a tenant.
The most common form of eviction comes from nonpayment of rent, but a tenant can be evicted for any material violation of the lease. What constitutes a material violation? This is a factual question and every case is different, but some of the material violations I have dealt with in the past have been: destruction of the apartment/unit, having a pet when the lease prohibits, smoking in a non-smoking apartment/unit, having someone living in the unit that is not on the lease, etc.
The eviction process begins when the tenant is in default on the lease, whether it is for nonpayment of rent or in violation of the lease. When default occurs, an eviction complaint must be drafted stating the reason(s) the landlord is evicting the tenant. If it is nonpayment of rent, it must clearly spell out the amount past due. If the default is a violation of the lease, it must specifically state what terms of the lease the tenant is in violation in. The eviction complaint is then filed with court administration in the county where the rental property is located. Court administration will then set the matter for a hearing and issue a summons stating when/where the eviction hearing will be. The summons and eviction complaint then must be personally served on the tenant at least seven days before the hearing.
On the day of the scheduled hearing, it is commonly seen as a first appearance by the parties. If the tenant fails to appear on the day of the hearing, the landlord will be granted the eviction immediately. If the tenant shows up to court with the amount past due the landlord must accept the payment and reinstate the lease agreement. If the tenant appears at the scheduled hearing and denies the allegations stated in the complaint, the judge will typically set the matter on for a formal court trial within seven days of the first appearance. When the matter is set on for a formal court trial, the landlord and all other witness must be present to testify. After the judge hears all the evidence from both parties, the judge will issue a decision on whether or not an eviction will be granted. It is important to note that the judge has the ability to grant the eviction, but postpone the actual move-out date for up to seven days.
One of the most important things to understand in an eviction action is the sole issue to be determined at the hearing is who is entitled to possession of the property. If the landlord is claiming past due rent and the tenant is unable to pay, the eviction will be granted, but the landlord must file a separate action is he/she wishes to collect on the past due rent. Same goes for a tenant who has destroyed the apartment and the landlord is attempting to collect the cost to repair. Lastly, a landlord will not be able to collect on attorney’s fees unless it’s specifically stated in the lease agreement, and once again, must file a separate action in order to collect.
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