Evictions
Simply stated, an eviction is a legal process to oust a person from possession of real estate/property (i.e., house, apartment, room, etc.). Eviction laws vary from state to state, but, generally, there are two lawful ways to evict someone: (1) legal or actual eviction; and (2) constructive eviction.
Legal or Actual Eviction
A landlord initiates legal eviction procedures because: - the term of the lease has ended; - tenant violates a law or ordinance; - tenant violates the requirements of the lease or the use of the premises as designated in the lease; - tenant fails to pay rent or damages the property; or - tenant threatens the landlord.
Constructive Eviction
Constructive eviction occurs when the landlord causes the property to become uninhabitable or substantially interferes with the tenant’s ability to use the property for its intended purpose, which forces the tenant to leave. In this case, the tenant may terminate the lease without any further obligation.
Retaliatory Eviction
Retaliatory eviction is where the landlord evicts the tenant in response to a tenant’s complaints against the landlord or involvement in activities with which the landlord does not agree. Retaliatory eviction is often illegal, particularly if the landlord begins eviction procedures with a certain time following the tenant’s act (e.g., within 90 days).
Illegal Actions
A landlord cannot evict a tenant based on discriminatory factors, e.g., race, sex, religion). And a landlord cannot evict a tenant by changing the locks on the residence, placing a lien on the tenant’s personal property, removing the tenant’s personal property from the premises, or shutting off the tenant’s utilities.
Procedures for a Legal or Actual Eviction
The landlord must provide written notice of the eviction to the tenant. The date by which the tenant must move out (e.g., 3 days, 30 days) differs according to the cause of or reason for the eviction and the laws of state in which the eviction is occurring. If the deadline specified in the written notice passes and the tenant has not moved out, the landlord files an eviction lawsuit, and the tenant receives a summons to appear at a hearing. If the court issues an eviction notice, the tenant must vacate by a specified date; if the tenant does not move out, law enforcement may remove the tenant without further court action.
If back rent is due or the tenant has damaged or destroyed the property, the landlord may also sue for damages. And if the tenant has threatened the landlord, the landlord may ask the court for a temporary restraining order.
Actions Renters Can Take
Renters should become familiar with the landlord-tenant laws in their state, including how much notice a landlord is required to provide in an eviction notice. If a landlord initiates eviction procedures, the tenant should consult with an attorney who can advise the tenant as to possible defenses and arguments against eviction. Here are some examples: - if the landlord evicts because the tenant is late paying the rent, but has accepted late rent payments in the past, the tenant may be able to avoid the eviction; - if the tenant is being evicted for failure to pay rent and pays the amount due before the deadline, he or she cannot be evicted; - if the landlord evicts the tenant simply by changing the locks on the premises, the tenant may terminate the lease and sue for damages; and - if the premises are destroyed through no fault of the tenant, the landlord has no action against the tenant, and the tenant is released from all further obligation on the lease.
One obvious way to avoid eviction is to timely pay the rent. While this seems too obvious, the reality is that simple miscommunication about paying the rent results in many avoidable cases. If you must pay late, let the landlord know in advance and obtain permission for the late payment. Many landlords will assume the lack of a timely payment means that the tenant will not pay at all. While this may be over reacting in some cases, it is accurate in others. Many landlords will, however, work with the tenant on late payments if advance notice is given and permission or arrangements are sought. (Of course, it is best to confirm such late payment agreements in writing.) Remember, unless there is some legal defense to the Notice to Pay Rent or unless the home is substantially defective, non-payment of rent is a pretty good ground to evict a tenant.