Don't Use Self-Help to Evict a Tenant
A self-help eviction occurs when a landlord retakes possession of a property without using the eviction process. The use of self-help may amount to landlord harassment. Nearly every state prohibits a landlord from using self-help to evict a tenant. A state's legal eviction procedures apply regardless of what a tenant has done or how a tenant behaves. Even if the tenant has not paid rent, has destroyed property, or has violated a term in the lease or rental agreement, a landlord may only legally remove the tenant by following state eviction procedures.
A landlord should avoid the following self-help methods:
Liability for Evicting a Tenant Illegally
Courts frown on self-help evictions, and may readily award a tenant damages for an illegal removal. If a landlord does illegally evict a tenant, the tenant may sue the landlord for trespass, wrongful eviction, assault, battery, slander, libel and the intentional infliction of emotional distress.
A tenant's behavior will not shield a landlord from liability. Instead, a court may view the landlord's unlawful actions as landlord harassment.
The tenant is entitled to actual money damages for the expenses resulting from the illegal eviction. This may include compensation for temporary housing, for the food that spoiled when the electricity was cutoff, or for property that disappeared when the tenant was locked out by the landlord. Some states may allow a tenant to recover monetary penalties, such as two or three months rent or two to three times the actual damages. A tenant may also be able to remain on the premises, receive free occupancy, or vacate the premises and collect their security deposit from the landlord.
Evict a Tenant Lawfully
Instead of using landlord harassment and other illegal means to force a tenant to vacate a rental property, a landlord should follow applicable state laws when evicting a tenant. Although it may take longer and cost more money, it will protect a landlord from hefty fines. Because eviction procedures vary in each state, the following are general guidelines for evicting a tenant.
Step 1: Serve the Tenant with a Termination Notice
Before a landlord can go to court to remove a tenant, the tenancy must be terminated. A landlord may terminate a tenancy with or without a reason. Cause, or a legal reason, may be necessary to terminate a tenancy regulated by rent control ordinances, however. To evict a tenant for cause, three types of termination notices are available:
To remove a tenant without cause, the landlord must serve the tenant with a 30-day or a 60-day notice to vacate the property.
Step 2: File an Eviction Lawsuit
If the tenant fails to cure the violation or refuses to vacate the premises within the specified time, the landlord must file an unlawful detainer action to have the tenant lawfully removed. The landlord must file a "complaint" with the court. A complaint contains the facts that justifies the eviction and may contain a request for back rent and damages. The landlord must serve the tenant with the complaint, along with a summons, which is the document informing the tenant of the lawsuit.
Step 3: Wait for the Tenant's Answer
The tenant can respond to the complaint with an "answer" within the time specified on the summons. The tenant may use the answer to deny the allegations or submit a defense. A tenant, for example, may assert that the eviction is retaliation or that the missing rent was used to make necessary repairs that the landlord refused to make.
Step 4: Receive a Judgment for Possession
If the tenant does not respond to the complaint, a default judgment is issued for the landlord. If the tenant does respond with an answer but the court rules in favor of the landlord, that judgment entitles the landlord to possession of the property.
Step 5: Remove the Tenant
Even though the landlord is entitled to repossess the property, the landlord cannot remove the tenant without the assistance of a law enforcement officer. Once an officer, typically a marshal or a sheriff, receives the judgment and a fee, they will notify the tenant of the lawful eviction and the number of days the tenant has to move. If the tenant fails to vacate the property within the time specified, the law enforcement official may physically remove the tenant.
Avoid Illegal Evictions: Let an Attorney Help You Do It Right
Sometimes a tenant causes more trouble than it's worth -- whether it's late rent payments, complaints from neighbors, or destruction to your property -- and they need to go. But you still need to follow the law when evicting a problem tenant. Make sure you're following the letter of the law by working with a local landlord-tenant law attorney in your area.