So what happens if you’re a residential landlord, and the tenant isn’t paying the rent? So, you post a 7-day notice, and when the tenant still doesn’t pay, you know it’s time to file an eviction action. What are your options?
Do it yourself. Although some landlords can fill out the initial paperwork (Summons and Complaint) correctly, most become quickly overwhelmed if the tenant files an answer and raises affirmative defenses to the complaint. This is not recommended. Further, if the landlord is an LLC or Corporation, it must hire an attorney to represent its interests in court.
The best solution is to hire an attorney experienced in landlord-tenant matters. Each and every day a tenant occupies your property without paying the rent, you are losing money. The cost to hire an attorney is usually less than the cost of having a non-paying tenant prevent you from getting a paying tenant in there. There are times to save money, but an eviction action is a time to do it right the first time.
If the landlord does everything right, the residential eviction process usually works like this:
The rent is due, the tenant doesn’t pay.
The landlord posts a 7-day notice; tenant still doesn’t pay.
Depending on whether the notice period included a weekend, the notice period expires. At this point, the landlord has no obligation to accept any rent from the tenant. If the landlord’s intent is to get the tenant out, no funds should be accepted. An eviction action is filed. The Complaint must include a Summons, a copy of the 7- day notice, and a copy of the written lease (if there is one still in effect).
The tenant must be personally served with the Summons and Complaint by someone who is not a party to the action. Once served, the tenant must file an answer to the complaint (most tenants do not).
The court holds a hearing to determine the termination of tenancy and any amounts owed.
If the tenant did NOT file an answer:
At the hearing, the landlord files a default and gets a judgment (usually for possession only). The order is then served to the tenant, who then has ten days to vacate. Alternatively, the landlord and tenant can agree on an order for a payment plan to stay in the property or a time to vacate the property beyond the statutory 10-days.
The tenant either leaves peacefully, or the landlord files a writ of eviction to have the sheriff forcefully evicted the tenant. The landlord gets possession and changes the locks!
If the tenant DID file an answer:
At the hearing, the landlord and tenant present their arguments to the court and the court issues a decision as to the continued or terminated tenancy. Depending on the evidence presented at the hearing, this may result in an order of eviction whereby the tenant must vacate within 10-days, future court dates, or dismissal of the Complaint.
As you can see from the above example, the eviction process can be simple or complex, depending on the tenant's actions. Although commercial evictions have slightly more simplified procedures, they too can be daunting. If a tenant files bankruptcy, an automatic stay goes into effect, requiring the landlord to seek relief from the stay in federal bankruptcy court. Considering the possibilities, it’s best to seek the immediate advice of counsel on eviction matters.
Additionally, we represent residential landlords, tenants, as well as commercial landlords, and small business commercial tenants. If you have a question or concern about a tenancy that may lead to an eviction, please contact our office for an initial consultation.