When the relationship between a landlord and tenant becomes unworkable, the landlord may find it necessary to evict a tenant through legal channels. Eviction is definitely a legal process, and a landlord must follow each step to the letter if it is to be successful. A judge ultimately makes the decision whether or not a landlord can legally evict a tenant, and in many jurisdictions only the sheriff's department or equivalent can actually use force to remove tenants and their property.
One thing a landlord cannot do to evict a tenant is change the locks or otherwise deny physical access to the property. Utilities cannot be shut off, and essential repairs related to safety or sanitation must still be made. Any use of intimidation, denial of access or physical damage to the structure would be considered an illegal act called constructive eviction. Tenants can sue landlords in court for such activities.
In order to evict a tenant legally, the landlord must first end the tenancy. This means drawing up a legal eviction notice, which may also be called a notice to quit. This eviction notice is more of an official shot across the bow than an actual enforceable order, however. The notice should state the reason for the proposed eviction, along with a specific date the premises should be abandoned. This could be as little as three days for non-payment of rent to several months for a general lease violation or a unilateral decision to end the tenancy.
Once the tenant has received the first eviction notice, he or she has the right to resolve the issue privately. This could mean paying the overdue rent or getting rid of an unauthorized pet or removing a nuisance from the property. If the tenant does make such a resolution, the landlord should not be able to pursue a legal eviction. If the tenant does not respond to the eviction notice by the specified time, however, a landlord can move to the next legal step.
Once the time limit is definitely up, and not a minute before, the landlord must file a case against the tenant in a local court. This action is often referred to as a Petition by Owner for Restitution or Complaint in Forcible Entry. The landlord must also provide copies of the lease to the court, as well as a copy of the eviction notice. The court may also require a filing fee. Once the landlord has presented all of the paperwork and paid the fee, the court should provide a time and date to appear for a hearing.
Meanwhile, the landlord needs to ensure that the tenant receives all of the legal notices concerning the upcoming eviction hearing. These legals papers must be delivered by a disinterested third party, whether it be a deputy sheriff, a professional process server or any adult not related to or employed by the landlord. The tenant must have physical possession of the court documents in order to be considered served. If he or she is not legally served, the eviction process may have to start over again, with a new court date and judge.
Tenants who have received notice of an impending eviction hearing have the right to provide an answer to the landlord's petition. An acceptable answer might be proof of a rent payment, evidence of wrongdoing by the landlord, or a clear violation of a health code. If the tenant does not provide an acceptable answer or file a counter-suit by the court date, the judge may enter a default judgment for the landlord and the actual physical eviction can take place after a specified number of days.
If the case goes to a hearing before a judge, both sides can present evidence of lease violations or other complaints. Witnesses may be called to offer testimony. The judge will consider the evidence and render a decision as to whether or not the landlord can proceed with an eviction. If the judge rules in the landlord's favor, the tenant may have only a few days to vacate the premises before a court-ordered sheriff's deputy enters the premises and forces compliance.
Some landlords find it easier to allow bad tenants to continue occupying a rental property rather than go through the legal process of eviction. Others may decide to retaliate against tenants for reporting a violation or insisting on timely repairs. However, the only way to evict a tenant legally is to exhaust all other good faith efforts to improve the relationship, and follow the process to the letter in order to get legal relief.
