Thursday, July 27, 2017

What is Eviction.

Eviction is the removal of a tenant from rental property by the landlord.  Landlords can’t evict tenants without terminating the tenancy first. This usually means giving tenant adequate written notice, in a specified way and form. If the tenant doesn’t move after proper notice, the landlord can file a lawsuit to evict a tenant. (This type of lawsuit is sometimes called an unlawful detainer, or UD lawsuit.) In order to win, the landlord must prove that tenant did something wrong that justifies ending the tenancy.

State laws have very detailed requirements for landlords who want to end a tenancy. Each state has its own procedures as to how termination notices and eviction papers must be written and delivered to the tenant (“served”). Landlords must follow state rules and procedures exactly.

Notice of Termination for Cause
Although terminology varies somewhat from state to state, there are basically three types of termination notices that tenant might receive if the tenant has violated the rental agreement or lease in some way:

Pay Rent or Quit Notices are typically given to tenant when tenant have not paid the rent. These notices give the tenant a few days (three to five in most states) to pay the rent or move out (“quit”).

Cure or Quit Notices are typically given to tenant if the tenant violates a term or condition of the lease or rental agreement, such as a no-pets clause or the promise to refrain from making excessive noise. Usually, the tenant has a set amount of time in which to correct, or “cure,” the violation.

Unconditional Quit Notices are the harshest of all. They order the tenant to vacate the premises with no chance to pay the rent or correct a lease or rental agreement violation. In most states, unconditional quit notices are allowed only if the tenant has:
  • Repeatedly violated a significant lease or rental agreement clause
  • Been late with the rent on more than one occasion
  • Seriously damaged the premises, or
  • Engaged in a serious illegal activity, such as drug dealing on the premises.
Notice of Termination Without Cause
Even if tenant have not violated the rental agreement and have not been late paying rent, a landlord can usually ask the tenant to move out at any time (assuming tenant don’t have a fixed term lease) as long as the landlord gives the tenant a longer notice period.
A 30-Day Notice to Vacate or a 60-Day Notice to Vacate to terminate a tenancy can be used in most states when the landlord does not have a reason to end the tenancy.

Rent Control Exceptions.
Many rent control cities, however, go beyond state laws and require the landlord to prove a legally recognized reason for termination. These laws are known as “just cause eviction protection.”

Constructive eviction
This term used in the law of real property to describe a circumstance in which a landlord either does something or fails to do something that he has a legal duty to provide (e.g. the landlord refuses to provide heat or water to the apartment), rendering the property uninhabitable. A tenant who is constructively evicted may terminate the lease and seek damages.

A tenant who suffers from a constructive eviction can claim all of the legal remedies available to a tenant who was actually told to leave.

Actual eviction
This is the physical expulsion of a person from land or rental property. It is the physical ouster of a tenant from the leased premises. After the actual eviction, the tenant is relieved of any further duty to pay rent. Actual eviction is the physical dispossession of a tenant.

Partial eviction
It refers to an eviction resulting from a landlord depriving a tenant of use of a portion of the leased premises. In most states, partial eviction allows a tenant to stop paying rent if the tenant abandons the premises, while in other states the tenant can either abandon the premises or pay partial rent.

Retaliatory eviction
  • It is a substantive defense and affirmative cause of action that can be used by a tenant against a landlord. If a tenant reports sanitary violations or violations of minimum housing standards, the landlord cannot evict the tenant in retaliation.
  • If the tenant hasn’t moved out or fixed the lease or rental agreement violation, the landlord must properly serve the tenant with a summons and complaint about eviction in order to proceed with the eviction.
  • Even if the landlord wins the eviction lawsuit, the landlord can’t just move tenant and his/her things out onto the sidewalk. Landlords must give the court judgment to a local law enforcement office, along with a fee. A sheriff or marshal gives the tenant a notice that the officer will be back within a few days to escort tenant off the property.
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