Steps to Evicting a Tenant:
While some tenants may push you to the edge of reason, it’s important to understand how the eviction process works before rushing to get that unruly tenant out. If you don’t understand how to properly evict a difficult tenant in your state, you may end up being stuck with them.
Read on to understand how to legally evict tenants.
Step 1: Talk to Your Tenant
Once you become aware of a problem at the rental unit, start by talking with your tenant before jumping directly into the eviction process, especially if the tenant has had no history of issues beforehand. You’ll also need to be sure the issue is something you can evict a tenant for in your state.
When Can I Evict a Tenant?
Landlords can evict tenants for different reasons depending on the state. In most states, any one of the following is a valid reason to evict a tenant:
- Violating the terms of a written lease/rental agreement
- Failure to pay rent when due
- Material health/safety violations
- Involvement in illegal activity on the rental property
- Domestic violence against another tenant
- Remaining in the rental unit after the lease term or agreed-upon rental period has expired
Evictions Cost Time and Money
Most landlords don’t factor in the costs of eviction. There can be filing fees, jury fees, fees to issue the eviction order, etc. The filing fees alone (just to file the eviction paperwork with the court and open an eviction case) could add up to hundreds of dollars. In California, for example, filing fees cost between $385 and $435.
If you choose to hire an attorney, your expenses could be even higher.
Add to that the fact that the court process may take several weeks to several months, and that tenants may still be given additional time to move out even after an eviction order is issued, and it might be worth it to attempt to iron out the issues with your tenant instead of going through a lengthy and/or expensive eviction process.
However, just because a tenant has done something worthy of eviction in your state, that doesn’t automatically mean you have the right to simply kick the tenant out.
This is often called a “self-help” eviction and is illegal in most states, although that’s not true for every state.
What’s a Self-Help Eviction?
This is when you as the landlord or property owner:
- Change the locks without telling your tenant(s)
- Remove your tenant’s belongings from the rental unit when they’re not home
- Shut off your tenant’s utilities for the sole purpose of forcing the tenant to move out
- Refuse to perform necessary repairs in an attempt to get the tenant to move out
- Or otherwise prevent your tenant(s) from physically entering or living in the rental unit
It’s best to try and work out issues with your tenant before you get to the eviction stage if possible. We look at a couple of ways landlords and tenants can work together below.
Rent Issues
If a normally reliable tenant is suddenly late on their rent, ask why they’ve missed the payment. Maybe the primary earner lost their job, is on leave due to health issues, or has had to care for a sick family member and been unable to work.
A few options to avoid evicting an otherwise good tenant could include:
- Setting up a temporary payment plan
- Temporarily reducing rent
- Accepting a partial payment for the current period
- Pushing back the rent due date by a few days or a week
Be sure that any agreement you reach with your tenant is in writing, and be clear about compliance deadlines. This way, the tenant can’t make false claims about what any agreement may or may not have said in court if you end up filing an eviction case after all.
Other Violations of the Rental Agreement / Lease
If a tenant has violated the rental agreement/terms of the lease, you may be able to avoid costly eviction litigation if the tenant is willing to work with you.
For example, let’s say your tenant has too many people living in the rental unit according to the rental agreement/lease.
Talk to your tenant about what caused this situation. Maybe a friend or family member is staying with your tenant because they lost a job or had some other financial or physical hardship, and now there are too many people in the apartment.
You might be able to allow the tenant’s temporary guest to stay for a set time period with an addendum to the rental agreement/lease instead of evicting a good tenant.
Maybe the issue is damage to the apartment. In many states, you’re required to give the tenant a written notice and a specific time period to fix the damage before they can be evicted.
As noted above, be sure to put any agreement with your tenant in writing, and be clear about compliance deadlines.
You could also try offering the tenant cash to move out of the rental unit in order to avoid the eviction process, but it may or may not work for you depending on the situation with your tenant.
If you’ve done your best to work with the tenant and they still won’t or can’t comply with your requests, then typically, your next step is to provide the tenant with a written eviction notice (if required). If you live in a state with no written notice requirement, skip to step 3 below.
Step 2: Deliver the Eviction Notice
The next step in the eviction process is to deliver a written eviction notice to your tenant—but only if this is required in your state. Some states require this if you’re attempting to remove a squatter, as well.
When a Written Eviction Notice is Required
Most states require landlords to give their tenants a written eviction notice before filing an eviction case with the court. This notice will typically give your tenant a certain amount of time to:
- Pay past due rent
- Correct a lease/rental agreement violation (like too many people in the apartment, minor property damage, or pets in an apartment with a no-pet policy)
- OR move out
The amount of time required in the notice varies from state to state and can even be different depending on the reason for the eviction.
In some states, landlords are only required to provide their tenants with 24 hours’ notice, while in others, landlords could be required to provide 30 days’ notice or more.
If your tenant doesn’t pay the past-due rent owed or correct the lease violation within the time period required on the notice (or move out), the next step is to file an eviction action (or lawsuit) with the court.
BUT just because you’ve filed an eviction case with the court, that doesn’t mean your tenant has to move out yet. Most states won’t require the tenant to move out of the rental unit unless the court issues a ruling in your favor requiring the tenant to move.
Contents of an Eviction Notice
The information required on an eviction notice varies from state to state, but should generally include the following:
The reason for the eviction.
Why are you evicting the tenant? Be specific. Simply stating that the tenant violated a lease provision might not be good enough in court. Did the tenant have a pet when there’s a no-pet policy? Did the tenant smoke in a no-smoking unit?
Be clear on the eviction notice so the tenant can’t claim they didn’t know how to comply with the notice or why they were being evicted.
What you are expecting the tenant to do.
Do they need to move out? Pay past-due rent? Comply with a lease provision?
Again, be specific so the tenant knows exactly what to do in order to avoid being evicted.
When you are expecting the tenant to do it.
The deadline on an eviction notice is typically dictated by state law.
Make sure the time period in your notice matches the time frames laid out in state law; otherwise, it’s possible the eviction case will be dismissed because you didn’t give the tenant enough time to comply with the eviction notice, and you’ll have to start all over again.
What will happen if the tenant doesn’t comply.
State that the tenancy will terminate by a specific date, or that you intend to file a lawsuit to remove the tenant, etc.
Ensure that the tenant understands what will happen if they don’t do what they’re being asked to do within the time frame they’re given on the notice.
Any statutorily-required language.
Make sure your notice includes any language required by your state’s laws, such as a statement that the tenant has the right to contest the eviction in court.
The required language (if any) varies from state to state, with some requiring entire paragraphs, and other states not requiring any specific wording on the notice at all.
This is important to get right, because if you live in a state that requires that certain phrases be included on the notice, and your notice doesn’t have them, the eviction case may be dismissed.
Serving the Notice
Not only is it crucial to ensure that your eviction notice contains the right information and any required words and phrases, but you’ll also need to make sure that you’ve properly delivered it to the tenant, or once again, your eviction case could be dismissed.
Some of the most commonly allowed delivery methods include:
- Giving a copy of the notice to the tenant in person
- Posting a copy of the notice in a conspicuous place at the rental unit
- Leaving a copy of the notice with the tenant’s family member, another occupant of the rental unit, or someone at the tenant’s workplace
- Mailing a copy of the notice to the tenant
These methods vary slightly from state to state, so it’s necessary to ensure that you’ve delivered the notice to the tenant in the correct way.
Once the notice has been properly formatted and delivered to the tenant, you can file an eviction case with the court.
Step 3: File the Eviction Action
In states that require a written eviction notice, you must wait for the deadline in the notice to pass. Then, if the tenant is still in the rental unit and hasn’t done anything (or enough) to comply with the notice, you’re finally free to file an eviction action with the court.
For states with no written eviction notice requirement, you can file an eviction case with the court as soon you become aware of an issue.
Complete the Paperwork
This means filling out paperwork explaining why you want to evict your tenant (often called a “complaint”), and in some states, the steps you’ve taken to work with the tenant prior to filing an eviction action. Many states will also want you to provide the court with a copy of the eviction notice.
Once you’ve given all the required paperwork to the court, you’ll typically be assigned a case number, which will allow you to check in with the court on the status of your case and ask any questions during the court process.
Most states will set the eviction hearing at the time the eviction paperwork is filed with the court; however, some will not set a hearing until after the tenant has filed a written response to the eviction case, and others will not select a hearing date until several days after the eviction paperwork has been filed.
Serve a Complaint and Summons on the Tenant
Depending on the state, you may be required to serve a copy of the eviction complaint and a summons to attend the hearing on the tenant. You’ll typically be given a deadline to do this by, and if you fail to ensure the tenant has received a copy of the summons and complaint within that deadline, your case could be dismissed.
In other states, the court will serve the summons and complaint documents on the tenant.
If you’re unsure how to navigate the court process in your state, it may be a good idea to seek legal assistance. Many court websites have a “self-help” section for eviction cases that covers filing deadlines, which forms to use, and where to get additional help.
Mistakes That Could Hurt Your Court Case
There are a few things you may have done (intentionally or not) that could hurt your chances in court. Though not exhaustive, the list below covers some common mistakes landlords make when attempting to evict tenants.
Habitually accepting late rent payments.
If the tenant can show that you had a habit of accepting late rent payments from them on a regular basis, the court could rule in the tenant’s favor, and the tenant may not be required to move.
Moving forward with the eviction even though the tenant complied with the eviction notice within the deadline.
You cannot evict a tenant if they comply with everything on the notice within the deadline given in the notice. Be clear about your expectations on the notice and don’t attempt to evict the tenant if they have met the expectations as set forth in the notice.
Not giving the tenant a written eviction notice (in states that require one).
This is why proper delivery of an eviction notice matters. Be sure you understand what is acceptable in your state, and get proof of service to show that you really did serve a copy of the eviction notice on the tenant.
Not giving tenants enough time to comply, as required in your state’s laws.
For example, the notice only gave your tenant three days to pay past-due rent, but your state’s laws say tenants have 14 days to pay past-due rent before an eviction action can be filed. Your eviction case could be dismissed if tenants aren’t given enough time to comply.
Evicting a tenant for being the victim of domestic abuse/domestic violence.
Most states have laws that prevent you from evicting a tenant solely because they’ve been the victim of domestic abuse/domestic violence. That doesn’t mean you can’t evict the abuser, however.
The eviction is discriminatory and was only done because of your tenant’s race, sex, familial status, sexual orientation, or other protected status.
It’s critical to be clear on the eviction notice about why the tenant is being evicted, and to avoid vague phrases like, “The tenant broke one of the lease terms.” Otherwise, tenants could make the case that they’re only being evicted because you don’t like them, or because you’re biased against them.
Discrimination can also include evicting a tenant in order to avoid making “reasonable accommodations” for a disability as required by federal or state law, such as adding ramps or railings.
Not fulfilling your obligations under the law and/or under the rental agreement.
This could take several forms, such as failing to make necessary repairs to the rental unit to make it livable or failing to provide utility services if this is something you’ve agreed to provide under the terms of the lease/rental agreement.
The tenant was not involved in, or aware of, any illegal activity that took place in the rental unit or that was done by other occupants of the rental unit.
In several states, if tenants can show that they called the police or otherwise reported illegal activity done by others, and/or told the parties involved to leave the rental unit, then the tenant could be allowed to remain in the rental unit.
Trying to evict the tenant illegally (in states that do not allow “self-help” evictions).
Again, this includes things like removing the tenant’s belongings from the rental unit, changing the locks on the rental unit, forcibly removing the tenant without a court order, and/or somehow preventing the tenant from living in or entering the rental unit.
Renewing the tenant’s lease, even if you didn’t realize that’s what you were doing.
This can be as simple as accepting rent from your tenant after the original lease expired, in effect creating a new lease agreement (depending on the laws in your state).
Failing to properly serve the tenant with the court summons and/or eviction complaint.
If you failed to properly serve the summons and complaint on the tenant, then the case could be dismissed. Make sure you understand what the requirements are in your state for serving court documents on the tenant.
The eviction was to get back at the tenant for something they’ve done.
These are also called “retaliatory evictions.”
In most states, it is illegal to evict a tenant for:
- Complaining to the landlord or to the appropriate local or government agency regarding health, building, safety, or housing code violations that were not caused by the tenant
- Joining, supporting, or organizing a tenant organization or union
A few states assume that if an eviction action occurred within six months to one year of the above, then the eviction is retaliatory.
In those cases, the burden of proof falls on you as the landlord, which can make your case much more difficult to win. Again, this is where a detailed eviction notice that states exactly why you want to evict the tenant can help.
Step 4: Attend the Hearing
In most states, if the landlord fails to appear for an eviction hearing, the court will dismiss the case, meaning your tenant will be allowed to remain in the rental unit, and if you still want to evict them, you’ll need to file another eviction case (and pay another set of filing fees).
If the Court Rules in Your Favor
If the court rules in your favor, then the tenant must move out of the rental unit. But how this is accomplished varies by state. In some states, the landlord receives the eviction order and can remove the tenant.
In other states, law enforcement officials receive a copy of the eviction notice, and they are responsible for removing the tenant and their belongings from the rental unit.
In a few states, court officials will remove the tenants.
Ask the court if you are unsure how to remove the tenant once you receive the order for eviction.
If the Court Doesn’t Rule in Your Favor
It’s possible that the court will rule in the tenant’s favor and state that they don’t have to move out. In that case, depending on the reason for the ruling, you may have to file a new eviction case.
For example, if you didn’t properly serve the tenant with the eviction notice or summons and complaint, or gave the tenant too little time to comply, you could file a new case, making sure to properly serve the tenant and/or give the proper amount of time for tenants to comply with the notice.
If you believe the court made an error in reaching their decision, you could file an appeal, explained in step 5 below.
Step 5: File an Appeal
Finally, if the judicial officer issues a ruling in favor of your tenant, you may be able to appeal the ruling.
This means you would need to file a notice of appeal as soon as possible after the original court makes its ruling. Most states have an appeal deadline, giving you anywhere from a few days to a month after the ruling is issued to file an appeal.
There’s always a chance that the higher court could rule in your favor, or send the case back down to the lower court for a new trial or to allow additional evidence, etc.
Note that in most states, a ruling in an eviction case can only be overturned if the lower court made a legal mistake in arriving at its judgment, like not allowing witnesses when the law requires it, and has nothing to do with whether you liked the outcome of the case or not.
Appeals can take a few weeks to a few months, and may require additional filing fees, depending on the state.
Understand the Process
Below is a summary of how to evict a tenant:
- Talk to your tenant.
- Give the tenant a written eviction notice (if required).
- File an eviction action.
- Attend the hearing.
- Appeal the ruling.
Remember, just because your tenants are driving you crazy, that doesn’t mean you can simply throw them out. Know the law in your state so you can legally remove tenants who won’t abide by the rental agreement instead of being stuck with them indefinitely.
