The Eviction Process

The eviction process varies a great deal from state to state, and even on the local level. Almost all landlords will be required to go through a court process. This is true even if the landlord is not interested in trying to collect money.

To preserve the speedy nature of the summary eviction process many summary eviction statutes limit the defenses tenants can raise, and allow a dispositive hearing in an expedited civil litigation process.  Generally, the only defenses a tenant can raise are either procedural, or substantive defenses that would excuse the tenant’s breach (such as waiver, accord and satisfaction, etc.). The modern trend is to allow defenses such as retaliatory eviction, breach of a warranty of habitability, and discrimination claims. Additional defenses may be raised by residential tenants who receive federal “Section 8” benefits. Note that there are different Section 8 programs, each with a distinct set of rules.

The court’s jurisdiction to hear claims brought by the landlord are likewise limited in many states. In some states the only remedy the landlord can seek is possession. In most states, the landlord can also seek monetary judgment for damages related to the tenancy, such as unpaid rent.

In many jurisdictions the eviction process begins with a notice. This is often a notice to pay rent or vacate, or notice terminating a periodic tenancy. The rules for proper service of these eviction notices varies by state. In some states the cure period can be shortened or even waived by contract, while in many states such lease contact provision are not enforceable.

Typically the parties to the summary eviction process are the landlord and tenant. Some states allow a property manager or agent be the plaintiff. Usually a landlord or tenant can bring the summary eviction action against a sub-tenant. However, courts in some jurisdiction have ruled that as a matter of statutory interpretation a landlord may bring a summary eviction action against a sub-tenant if lease language so stipulates.

In some states, a purchaser at a foreclosure auction can utilize summary eviction procedures.

Some states allow a seller of real property to bring a summary eviction action against a purchaser in possession who failed to close the sale. In other states, courts have held that the seller cannot utilize the summary eviction process, but must instead bring an ejectment action.