Eviction

Eviction: An Overview

 

Contents:

Introduction

In common usage, eviction is the process used by landlords to recover possession of leased real property from tenants who do not want to leave. Evictions are difficult, painful, and expensive for all parties involved.

See Landlord and Tenant Law.

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Sources of law

Eviction is governed by six basic types of rules: state law, local law, leases, federal law, the common law, and court rules. Most states regulate residental renting, including the eviction process. Many base their laws on the Uniform Residential Landlord And Tenant Act (URLTA) or the Model Residential Landlord-Tenant Code. Cities, counties, and other local governments often supplement these regulations. Landlords and tenants may further regulate evictions through lease terms. For example, leases might specify the form and timing of eviction notices. Lease provisions may overrule some common law rules, but may not conflict with official regulations.

Outside of the District of Columbia and other territories directly administered by the federal government, there are few federal laws regarding eviction. Those that exist primarily deal with discriminatory housiung practices more generally. See Civil Rights Act of 1866 & 42 U.S. Code, Chapter 45, Federal Fair Housing Act.

The common law governs eviction issues not covered by regulations or lease agreements. Because most relevant regulations target residential rentals, the common law is most likely to apply to commercial leases. Finally, local court rules may significantly impact the eviction process. For example, a housing court's docket management procedures will influence how long it takes landlords to evict unwanted tenants.

Because there are so many different sources of rules that may impact evictions, and because those rules vary by jurisdiction, nothing in this article should be taken as universally applicable. See State Property Statutes.

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Reasons for Eviction

Landlords may legally evict tenants for one of three basic reasons. First, and most frequently, for not paying rent. Second, for other, non-trivial violations of lease agreements. Finally, landlords may evict tenants whose lease expired. Landlords have no general duty to allow tenants to renew their lease, and may choose not to renew for any reason, or even no reason at all. They may not, however, evict tenants or refuse to renew tenants' leases for improper reasons, as defined by statute.

For example, a landlord could evict a tenant for having a dog in violation of a "no pets" clause in their lease. The landlord could not, however, evict a tenant because a cat dashed into a "no pets" apartment while the door was open and the tenant immediately removed the cat. Similarly, a landlord can choose not to renew a lease simply because he does not like a tenant, but he may not refuse to renew a tenant's lease because she is an African-American.

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Retaliatory Eviction

Landlords may not evict a tenant for improper reasons, as defined by statute. At a minimum, landlords may not evict tenants in retaliation for reporting housing code violations, or because the tenant sued the landlord for discriminatory renting practices. Some states prohibit evictions in retaliation of any tenant report of landlord misconduct. When evaluating tenants' improper eviction claims, courts usually use a mixed-motive instruction.

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Other Prohibited Conduct

Landlords may not harrass them to try to get them to leave. Specifically, they may not cut off utilities and may not change the locks.

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Notice

Landlords must give tenants a Notice to Quit before evicting them. At a minimum, this notice must tell the tenant why the landlord wants to evict them and what they can do to avoid eviction. The precise timing and form of the notice varies by jurisdiction. For example, some jurisdictions allow landlords to deliver eviction notices by posting them on tenants' doors. Others do not. In most states, tenants being evicted for not paying rent may avoid eviction by paying all back rent.

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Court Proceedings

In most jurisdictions, after giving tenants notice of eviction, landlords must wait several days before taking additional action. If, after this time has passed, tenants have not worked things out with the landlord or agreed to leave voluntarily, the landlord cannot simply physically remove them. Instead, the landlord must get a court order. 

Because the normal civil court system is notoriously backlogged, most jurisdictions have a special summary process in their housing courts. This process is only used for eviction cases, and is designed to resolve conflicts in days or weeks, not months. In complicated cases, most housing courts try to simply deal with eviction issues via [[wex:summary process], and use normal procedures for other issues.

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Removals

Sometimes, even though a landlord has a court order instructing a tenant to leave, the tenant still refuses to leave. In these cases, the landlord must hire a law enforcement officer help remove the tenant.

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Changes in Property Ownership

If a landlord transfers ownership of a leased property, the new owner might be able to evict the property's tenants. This issue most frequently arises when a landlord's creditors foreclose on mortgaged rental property. In this situation, at common law, the new owner can evict tenants if the landlord mortgaged the property before their lease began. Many states still follow this rule. In the past, many mortgagors had a general policy of evicting tenants from foreclosed properties. Due to the recent economic turmoil, some large lenders, include Fannie Mae and Freddie Mac, are reconsidering these policies.

Similarly, if the government seizes a landlord's property by eminent domain, the landlord's tenants' leases are terminated and they may be evicted. See Landlord Tenant law.

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Costs of Eviction

Evictions have significant human and financial costs. The process is very stressful for tenants, who must find a new place to live while juggling jobs, children, and other obligations. Housing law is complicated, and many tenants do not fully understand their rights and duties, cannot afford to take the time to educate themselves, and cannot afford an attorney. As a result, the people with the greatest need for regulatory protection often cannot get it, putting them at increased risk of abuse by malicious landlords. Many cities have legal aid groups that specialize in eviction cases.

For landlords, evictions are frustrating, expensive, and sometimes dangerous. Landlords may have to pay court fees, hire a process server, hire an attorney, and hire a marshall or law enforcement officer to actually evict the tenant. The process can take weeks or months to complete, during which landlords are rarely able to collect rent from the tenant he or she is evicting. Many landlords are not completely familiar with housing laws, and innocent procedural mistakes can delay evictions by weeks or longer. Even if landlords win suits against tenants who did not pay rent, the tenants are usually judgment-proof. Finally, evictions sometimes lead to violent confrontations between landlords and tenants.

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Related Topics

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Additional Sources

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Other References

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