Termination and Eviction Overview for Landlords and Tenants – Part 2
Termination and Eviction Overview – Part 2
Eviction is the legal process to remove a person from occupation of real property. However, before an eviction lawsuit can be filed, a landlord must first serve the tenant with a legal notice of intent to terminate the tenancy.
A previous article on Termination and Eviction provided discussion of termination notices, common reasons for eviction, and an overview of courts of jurisdiction that handle eviction lawsuits.
State statutes are specific in their procedures and a landlord should be thoroughly familiar with applicable state statues, case law, and local court of jurisdiction procedures. Failure to follow proper procedures can result in a dismissal or even the loss of the eviction lawsuit.
The Pleadings
The Complaint
The Complaint is a legal notice wherein the landlord gives further notice of the cause of action for the eviction, that is, the facts that justify an eviction. It is a formal request for a judgment for possession of the rental premises and a money judgment for unpaid rent, damages, court costs, and attorney fees.
The Complaint should answer the following questions:
- What happened?
- Where did it happen?
- When did it happen?
- How was the landlord damaged?
- What relief is requested by the landlord?
Each state has court rules under which their respective judicial systems operate. The court rules are intended to standardize and simplify the written documents for the court’s use. In most states in filing eviction lawsuits, the landlord can use a standardized pre-printed form as provided by the court of jurisdiction. Most forms can be completed by a combination of fill-in the blanks and checking appropriate boxes.
If a landlord is preparing the form himself, there may be a requirement to note on the Complaint that the landlord is appearing “pro se”, or in some states, “pro per”, legal terms meaning that the landlord is proceeding without the assistance of an attorney.
After the Complaint has been prepared, the landlord must arrange to have a copy of the Summons and Complaint served upon the tenant(s). If there is more than one tenant, each tenant should be served. Proof of service including the date and manner of service must be provided to the court.
The Summons
The Summons is a legal notice to the tenant from the court of jurisdiction that the landlord has filed a Complaint against the tenant. The Summons commands the tenant to appear at court for a trial. In many states when a Complaint is filed, a court date is assigned at that time. The tenant must file a written response to the Complaint within a specified number of days and appear in court. If the tenant fails to respond the court may award a default judgment in favor of the landlord.
The court of jurisdiction may require copies of notices and written leases be attached to the Summons and Complaint. This requirement would include any expired leases and all written modifications, amendments, and addendums that were executed relative to the tenancy at issue.
Service of Process
Many states have specific procedures for service of court papers. It is the landlord’s responsibility to follow proper notice requirements. Failure to comply with service requirements can result in dismissal of the eviction lawsuit.
In general, service can be made by any person of legal age who is not a party to the Complaint. The landlord cannot personally serve the Complaint and Summons. The landlord should make arrangements with law enforcement officials or a process server to serve the court papers.
Personal service of court papers, that is, handing the papers directly to the named tenant or leaving the notice with the tenant if he refuses to take it, is most often the preferred choice of service to prove delivery to the tenant.
In many states, substituted service may be used if repeated attempts to locate and personally serve the tenant have been unsuccessful. The process server may leave the Complaint and Summons at the rental premises with a competent member of the household who is at least 18 years old. Additionally, a second copy of the Complaint and Summons must be mailed first class to the tenant at the rental address. Service is not complete until both steps have been completed.
If the server is making the service on a domestic corporation, partnership, or other entity, the server should deliver a copy of the Summons and Complaint and any attachments to an officer, managing agent or any other general agent authorized by appointment or by law, to receive service.
It is recommended that each adult occupant of the premises be served with the court papers. If the lease agreement was signed by co-tenants, service on only one of the tenants would be sufficient but serving all tenants is a better policy. A co-tenant, if not served, may try to use a defense later on that he had no knowledge of the situation since he was not served.
Whatever method of service is used, proof of service will be required before the lawsuit can proceed.
The Answer
The tenant files a response, called an Answer, to the landlord’s Complaint on or before the date shown on the Summons. The time allowed for the tenant’s response is limited, usually five days. In the Answer, the tenant will state his written defense to the Complaint.
After the tenant’s Answer has been filed, the clerk of the court will notify the landlord and tenant of the date and time of the hearing
If the Answer is not filed with the court within the specified time, or the tenant does not file a response (does nothing), the tenant loses all defenses. The court will enter a default judgment against the tenant in favor of the landlord. The default judgment allows the landlord to obtain a Writ of Possession to recover possession of the rental property and may also award unpaid rent, damages, and court costs to be paid to the landlord.
The tenant’s Answer may be either a denial of the allegations, or a claim of affirmative defense. As example, in a denial of allegations of the landlord’s Complaint, the tenant, if being evicted for non-payment of rent, may deny that the rent is unpaid, claiming he paid the rent to the property manager.
An affirmative defense is a valid legal reason that provides an explanation for the tenant’s actions and invalidates the eviction action.
Tenant Affirmative Defenses
Retaliation
A tenant cannot be evicted in retaliation for the exercise of his legal rights. If the tenant can establish that he has exercised certain rights for which the landlord might attempt to retaliate by eviction, he has raised a valid defense. As example, if the tenant filed a complaint against the landlord with the local government authorities about housing conditions before the eviction procedure was initiated, the tenant is entitled to a legal “presumption” that the eviction is truly in retaliation for that complaint. The law usually specifies a time period within which an action could be related to the presumption of retaliation.
Warranty of Habitability
The laws of most states makes the payment of rent an obligation of the tenant that is dependent upon the landlord’s obligation to provide a fit place for the tenant to live. In eviction lawsuits based on nonpayment of rent, the breach of the warranty of habitability asserts the tenant is relieved of his rental obligations if the landlord failed to keep the property in good repair.
Constructive Eviction
Constructive eviction occurs when a rental property becomes untenable, or a landlord substantially interferes with a tenant’s ability to use the property for its intended purpose. Accordingly, although constructive eviction can relate to warranty of habitability, there are also other actions that constitute constructive eviction, such as landlord threats, harassment, false claims, utility shutoffs, lockouts or other actions that interfere with the tenant’s quiet enjoyment of the premises.
Repair and Deduct
A tenant may use a repair and deduct right as an affirmative defense against an eviction lawsuit for nonpayment of rent. In many states under certain conditions a tenant may exercise his right to make needed repairs for property defects or damage that are the landlord’s responsibility and for which the landlord, after being given reasonable notice, has failed to remedy. The tenant deducts the costs of the repairs from rent.
Unexpired Lease
The current existence of a valid unexpired lease is no defense against the majority of specific grounds for eviction. If, however, the situation does not permit application of one of the specific lease agreement terms and conditions, then it is necessary that the lease be terminated to allow an eviction to take place. The lease agreement should contain a strong termination clause allowing both termination and eviction in the event of any breach of its various provisions. In the event that no special grounds exist and the tenant has fully and properly observed the lease, no eviction is possible.
Other Affirmative Defenses
Other affirmative defenses may include a landlord’s violation of rent control ordinances, landlord discrimination against the tenant, landlord acceptance of rent beyond the termination date, or landlord actions that constitute a waiver of rights to certain lease agreement conditions.
Default Judgment for Possession
If the tenant does not contest the eviction lawsuit by filing a written Answer to the Complaint, the tenant is said to be in default and the landlord may obtain a default judgment from the court for possession of the rental premises. The default judgment for possession requires satisfaction that the:
- The tenancy was properly terminated
- The Summons and Complaint were properly served on all tenants
- The state statute required notice period has elapsed from the date the tenant was personally served with the Summons and Complaint
- The tenant has not filed a written response to the Complaint by the time the landlord seeks a default judgment
A Default Judgment for Possession provides the legal basis for issuance of the Writ of Possession, a document that authorizes law enforcement officials to evict the tenant. The issuance and enforcement of the Writ is a separate action from the Default Judgment and requires additional action upon the part of the landlord.
In a final article we continue the discussion of Judgments and Writ of Possession, and preparation for Trial.