What is the Legal Process for Issuing an Eviction Notice to a Tenant?

Approximately 3.6 million eviction cases are filed in the U.S. every year, and a very large percentage of them get dismissed due to very simple errors on the part of landlords. As laws in regards to notice requirements for evictions vary from state to state, landlords must familiarize themselves with their local regulations. Yet, there are universal principles that landlords must follow when serving a tenant an eviction notice. Failure to adhere to these basic steps can cost landlords a lot of money and time with the tenant. This course will educate landlords on the steps they can take to avoid costly mistakes.

Understanding Legal Grounds for Eviction

For an eviction to occur, there must be a reason for the eviction. The most common reasons for eviction include non-payment of rent or lease, non-compliance with terms of the lease, damage to the property, conduct of illegal activity on the property, and holdover tenancy. Each of the grounds for eviction has its own set of documentation and proof requirements that must be met and accorded the appropriate respect by the courts.

For non-payment matters, we request a rent ledger and/or payment history. For other lease breaches, evidence of the alleged breach must be provided. In the event of property damage, a photograph and a detailed estimate for repair from a licensed contractor must be furnished.

Notice Requirements and Timing Regulations

For most landlords, the notice period will be the most critical component of the eviction process and the area where landlords most frequently make a mistake. Many landlord agreements will specify a shorter notice period for termination should a tenant be in breach of a covenant. But such provisions are almost always overridden by the laws of the state where the residential property is situated. All states require a three day notice for non-payment of rent, and for other lease breaches such as conditions in the lease, a 30 day notice to cure or quit.

For month-to-month tenancies, typically thirty days notice is required to end the lease for both landlord and renter. However, most states have longer notification periods for longer-term tenancies, such as sixty to ninety days.

The issues related to fixed-term leases are different to those for periodic (rental by agreement) leases. Generally a landlord will not be able to evict a tenant during the fixed term of a lease unless this is allowed under the terms of the lease for specified reasons (eg breach of terms and conditions of the lease). You must calculate the notice period from when the notice is actually served on the tenant, not when it is prepared by the landlord. The rules as to what to do when the date of notice falls on a weekend or public holiday differ between the states and territories.

Proper Documentation and Service Methods

There are state to state variations with respect to the rules and regulations governing legal notices but one criteria is universal. The content of the legal notice, i.e. precision and accuracy of information, forms the cornerstone of the document. Normally the legal notice contains details such as name and address of the tenant, description of the rental property in question, basis of the eviction action, amount of back rent, charges for services, any other charges applicable, and any curable defaults along with consequences that the landlord would invoke in the tenant’s failure to comply.

Different jurisdictions have different methods of service for levies, judgments, writs, etc. For this reason, the following standard methods of service are typically recognized: personal service, service to defendant’s premises after at least one attempt at personal service, and/or service by certified mail to defendant’s last known address with a request for a return receipt (where available). Email service and/or text message service of a lease or a warrant for levy of attachment and garnishment or similar action is prohibited unless such method of service is permitted by the terms of the lease or other agreements and is also permitted by the laws of the jurisdiction in which the service is being attempted.

Documentation of attempts made to personally serve a tenant or lessee can be very important evidence in court actions and tenancy matters. Documentation should include the date and time of the attempt, the method of attempt (i.e. hand delivery to residence, to place of business, etc.) and how the attempt ended. It is also very helpful to get the name and contact information of any witnesses. Some service providers will personally serve a tenant or lessee for you for an additional $25 to $75. This can be a bargain in many cases as it will save you additional time and possibly money in pursuing a service that will never occur. Some counties offer service by the sheriff or process server for an additional fee and also provide certification of service.

Ensure you are following all local laws regarding eviction by using a properly formatted eviction notice template to prevent errors.

The Court Filing Process

After the notice period has expired the landlord can file an unlawful detainer action in the local court. There are forms to fill out, an filing fee to pay and typical documentation to attach to the complaint such as a copy of the original lease agreement, a copy of the notice served on the tenant, a proof of service, and a brief explanation of the grounds for the eviction. Landlords who do not have all of this information should not show up to the hearing.

One of the biggest surprises for landlords is how quickly a court hearing can be scheduled on a lawsuit they filed. While the pre-court process can be slow, after the landlord files a lawsuit, the court expects the case to move quickly to hearing or trial within 10 to 20 days.

Eviction actions follow certain steps: first, the landlord files a complaint with the court and the tenant(s) receive a “summons” that informs them of a court hearing and the opportunity to respond or defend against the allegations of eviction. Typically, the tenant interposes defenses to eviction such as allegations of lack of proper notice, violations of the habitability code, discrimination, and others. The tenant may also allege that he or she has paid rent. The key for the landlord is to be prepared to offer evidence and call witnesses to substantiate his or her side of the story. Most of this evidence is written, in the form of a lease, checks or other proof of payment, correspondence, and photographs. Landlords are sometimes oblivious to the strength of the tenant’s claims and the court’s expectations as to how the landlord will be prepared to try his or her case. Angry or indignant is not enough. Having proof in hand is essential.

Enforcement and Tenant Removal

After a landlord wins a case against a tenant in small claims court, the landlord typically is granted a writ of possession. The writ of possession is delivered to the local police station by the process server. Usually, a police officer shows up and physically evicts the tenant. However, there is a delay and a fee that surprises many landlords.

We schedule the removal date after the removal date has been scheduled with the Sheriff’s office. Typically, the removal date is scheduled about 1 week after the 14 day notice is served by the landlord on the tenant. No one, including the landlord or agent, is allowed to physically remove a tenant or their property based on a court order of removal. Self-help evictions by a landlord or other person named in a lease agreement are against the law and can cost a landlord more than the amount of back rent owed.

The laws for abandoned and junk items on your property are regulated on a state by state basis. Typically there is a time frame in which property is stored and the original owner is notified before it is destroyed and sold for junk. There may also be different time frames in which property is stored depending on the value of the item. For instance, a coat or TV might be considered trash after a matter of weeks, whereas a piece of artwork or jewelry might be stored for several months.

Critical Compliance Considerations

Rent control, implemented at both the state and local levels, can add another layer of complications to eviction for the unaware landlord. Although rules governing eviction laws for rent-controlled properties differ from state to state, and even from city to city, in general there is a longer notice period, and fewer reasons for eviction. Furthermore, most jurisdictions require landlords to serve the tenant with a detailed notice explaining the reasons prior to beginning the eviction process. Some of the strictest cities to evict in are San Francisco, New York, and Los Angeles.

Federal rights and regulations can change quickly because they are that person’s right that the Federal government is supposed to enforce and amend as necessary. While some Evictions may be prohibited by The Fair Housing Act because they are based off of protected characteristics, the Federal government was able to amend The Fair Housing Act for a temporary moratorium on Eviction because of the COVID-19 pandemic under The CARES Act.

Unless your circumstances are particularly complex Legal Consultation is not generally required for sums of money or commercial premises, but for unusual or complex circumstances it may be advisable. However the cost to you of seeking and acting upon the advice of a solicitor is likely to be very small compared to the risk of loes to you as a result of a mistake. The risk of any litigation taking a long time also far outweighs the cost of taking advice.

Eviction is a precise and sometimes time-consuming process. Understanding the eviction process will help the landlord to protect his investment and comply with any Tenant Protection Acts that may apply. Without this knowledge, landlords can waste valuable time rehashing steps that they have already taken, lose rental income, and keep a bad tenant in longer than they have to.