Time to Pack: The Tenant Eviction Process Explained in 8 Simple Steps
For a landlord, the eviction process is always too slow, too cumbersome, and too costly. It is unsatisfying and unproductive. Therefore, the ideal eviction is one that never happens. A rigorous tenant screening process, including employment verification, public record, and background, credit, and reference checks, will minimize the risk of future eviction.
What Is an Eviction?
“Eviction” may be defined as that legal process for the termination of rental agreements (oral and written, residential and commercial) and the removal of the occupants from the premises in the manner prescribed by state law. It is not uncommon for courts to favor tenants in eviction cases and, for this reason, the landlord must be able to demonstrate compliance with the letter and spirit of the law or risk having the case dismissed. For eviction matters in Corpus Christi and elsewhere in Texas in the covid era, landlords are well-advised to seek experienced, reputable local legal counsel.
Eviction in the Covid Era
Evictions are more complex in the pandemic era, with many states or counties (Texas included), and even federal bureaucracies, issuing orders of dubious legality prohibiting some or all evictions. These orders may affect an eviction depending on the property location, the type of lease (residential or commercial), and the nature of the underlying leases.
Try To Reach an Agreement
No matter how thorough the tenant screening, an eviction will eventually become necessary. The landlord should take reasonable measures to work with tenants to make a deal. Situations will occur in which accommodation fails and it becomes necessary to invoke the legal process.
Eviction is a Matter of State and Local Law
Eviction laws are generally a matter of state and local law. Landlords should be well-versed in the law for those rare occasions when it must be called upon. Because the lease governs the relationship between the parties and forms the basis for eviction, it must accurately reflect state and local laws. Landlords might have an experienced attorney review the proposed lease. A landlord might use legal counsel in eviction actions to ensure full compliance with formalities.
Do Not Use Self-Help Measures
Landlords should be very hesitant to use self help rather than the formal eviction process. It may be tempting to place belongings on the lawn, change the locks, or turn off the utilities. In the age of the phone camera, a landlord should behave as if every word and action was being taped and played for the court.
The Agreement Must be Breached or Terminated
The landlord typically considers eviction after a lease provision has been violated or the agreement itself has expired and the tenant has not departed. Often the lease violation or expiration will be obvious and undisputed. It is not uncommon, however, for tenants to make up excuses for not paying the rent. Be prepared. Common reasons for eviction are:
· Failure to pay rent or other obligations
· Failure to perform other lease obligations
· Damage to the property
· Illegal activities on the property
· Lease expirations and tenants fail to vacate (“holdover tenants”)
· Other rule violations: unknown occupants, parking unauthorized vehicles, conducting business
Proper Preliminary Legal Notice of Eviction
State and local laws will govern the precise timing, content, and manner of delivery of the notice. In general, that notice will:
· Set forth the exact amount due
· Set forth the date by which payment must be made or the premises vacated
· Provide tenant a grace period before the eviction action is filed
· Be served on the tenant by posting in a conspicuous place (front door) and sent via mail (USPS) with return receipt.
· In some cases, it may be prudent or required to have the notice delivered by a paid process server.
If the past due monies are not received, or the unacceptable behaviors not remedied by the stated deadline, the landlord may commence the eviction action.
Filing the Eviction Action
The niceties of filing the eviction depend on state and local laws. The court clerk or the court will require evidence of proper notice. The landlord may pay a set fee for a fill-in-the-blank Summons and Complaint. Once completed and signed, these documents are filed with the court and served in proper fashion upon the tenants. These documents will specify a hearing date for appearance before the court.
Most eviction actions never result in a court hearing but are resolved in other ways. The landlord should nevertheless proceed with the expectation that all claims will have to be proven in court. In many cases, evictions are heard in small claims court, where procedures and evidentiary rules are relaxed. If a court appearance becomes necessary, the landlord should come prepared with the following documents.
· Copy of the signed lease and rules
· Physical proof of bounced checks or non-payment
· Proof of communications (text messages, emails, letters)
· Copy of the eviction notice
· Proof of service of the eviction notice
· Other evidence (photographs of damage, for example)
· Testimony of others in person or by affidavit
Answer questions honestly and respectfully. Be prepared for the tenant to lie or make outrageous claims, and remain calm and business-like. Court officers are accustomed to evaluating witnesses.
Evict the Tenant
If the court finds in favor of the landlord, they usually give the tenant some period of time to vacate. The amount of time will depend on local practices. If the tenant fails to vacate, the landlord will incur additional expense to arrange for a deputy and a moving company to remove the tenant and their belongings.
Collect Past-Due Rent, Damages, and Court Costs
It is not uncommon for the successful eviction judgment to include an award of money to the landlord for unpaid rent, property damage, court costs, and legal fees. But now, the landlord must collect the award. This involves the filing of another case to actually collect the money, often in the form of a garnishment of wages. The garnishment action requires the expenditure of more time and money on the part of the landlord or additional legal fees.
The expense and the delay in collecting these damages demonstrate why eviction is best avoided. Exercise due diligence during tenant screening. If an eviction becomes a necessity, thoughtfully consider engaging experienced counsel to assist you.