What are the rules for an eviction

Visitor Queston: I'm the new director of a struggling neighborhood organization. This past week I had two questions about how an eviction happens, one from a landlord who wants to get rid of a deadbeat tenant and one from a tenant who cannot pay the rent and is afraid of being evicted. While I don't intend to get involved in legal problems, what general knowledge should I share with the community and with the board of the association, which is concerned about potential for more evictions as the courts pick up the pace here after a slowdown due to the coronavirus.

Editors Reply: First, let's make sure that everyone reading this is aware of the difference between an eviction and a foreclosure, as we notice that some neighborhood people do not understand that. An eviction happens to a tenant, and a foreclosure is an action against a property owner, most often because the mortgage isn't being paid.

Evictions most commonly result from non-payment of rent, but there are instances of other reasons, such as a bad violation of the lease, perhaps adding occupants without the landlord’s permission or perhaps recurring complaints of loud parties and so forth.

There are two types of evictions: court-ordered evictions and evictions that the landlord carries out by himself or herself simply by telling the tenant that they have to move out and specifying the terms for that move. If the landlord is successful, an eviction should be said to have occurred even though there was no judicial or law enforcement action involved. (Sometimes these are called formal and informal evictions, respectively.) If tenants don't leave, in some states the landlord can request and receive a write or restitution, in which law enforcement carries out the removal of both people and possessions.

The tough thing about responding to your question is that different states, counties, and jurisdictions have different rules for evictions. The best thing we can do is tell you some things to look out for as you scout for the exact process in your location. To learn what that process is, you would need to talk with your local legal aid society if you have one (and most places in the U.S. do, although they may have any number of variations on the name), with a local member of the judiciary with whom your organization happens to have a connection, or with a real estate attorney who represents landlords.

When following leads to find the local people who know the local process backwards and forwards, keep in mind that the court we are talking about is always a civil court. This is not a criminal matter.

Usually the first thing that happens is the landlord issues a notice to vacate. This could happen by sending a letter or even by taping a notice on the door. Often there is a "grace period" specified, which is a number of days that the tenant has to remedy the situation before an eviction occurs.

State law often says what happens next. Some states, but not all, give tenants a right of redemption, or an absolute right to make good on whatever the landlord says is deficient.

Sometimes the laws allow settlements, which consist of an agreement between landlord and tenant about what amount of back rent will be paid or possibly other remedies. Because of the length of time it takes for the landlord to receive the final judgment in many states, landlords may be motivated to make a settlement rather than face the prospect of three or four months of vacancy.

If there is to be a court proceeding, often the tenant has no right to an attorney, and in practice the vast majority of tenants don't show up in court, sensing they won't win. If this happens, the judge usually issues what is called a default eviction judgment, providing that the landlord or his representative appears. Often the document that finalizes the eviction is called a writ of possession awarded to the landlord. You see that the process is tilted toward the landlord for sure.

In more bad news for the tenant, often state or local laws allow the landlord to remove the tenant’s possessions and throw them out on the sidewalk. In a somewhat more civilized process, the landlord may have to remove the tenant's possessions and put them in a storage unit, but in those cases, usually the tenant then must pay to retrieve the possessions, so that's not really better for many tenants.

So we see that eviction really is not in the interest of either the tenant or the landlord. The landlord is likely losing several months of rent, court-related costs in the three to four figure range, some miscellaneous legal costs such as paying a process server, and the costs of cleaning and preparing the unit for lease to a new tenant. The tenant loses a place to stay and often suffers emotional distress and disruptions to work and children's schooling, not to mention the loss of dignity of having to move suddenly and maybe having one's possessions placed out on the street for all to see and rummage through.

The neighborhood association should therefore be concerned about how to make eviction less likely. The long-range answer of course is an increase in the availability of affordable housing. Sometimes the problem is lack of quantity of affordable units, and sometimes a household just is suffering from either chronic extreme poverty or a sudden change of circumstances that has made paying the rent impossible.

If you haven't worked with housing issues before, you should be aware that in the U.S. only about a fourth of the eligible households ever receive any kind of housing assistance. So the answer is not simply a better information and referral service function at your neighborhood organization, since having the correct phone number and address of the local public housing authority probably wouldn't result in a different outcome.

But your neighborhood could and should work with developers to figure out how to create housing units available to all different income groups. Now as a director, you will likely encounter some resistance to "low-income housing," even from people who certainly appear to be of low incomes themselves. It is your responsibility to point out the moral obligation to provide safe housing for all who need it, and then to work with your board to figure out how to cancel out any negatives of low-income units that they see or expect.

Your organization can run some landlord clinics to help them screen tenants better, thereby preventing the eviction situation in many cases. Landlord training also could help teach how to prevent non-payment of rent from stacking up so that eventually the landlord feels that the only recourse is eviction.

You also might be a little more daring and run some tenant education classes, in which you explain the really unfortunate impacts that eviction can have on a household, ways to withhold rent because of missing repairs or essential services such as heat that are legally permitted in your state and location, and elementary facts about how to notify a landlord of financial difficulties and attempt to arrange for more generous payment terms, care for an apartment, behave in close quarters, and understand and honor one’s lease.

Many other neighborhoods are bracing for more empty housing units as the courts work their way through a backlog of eviction cases that were allowed to stall during the worst days of the pandemic. So this is a good time to discussion how to prevent evictions, both in the short term and the long term.

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National League of Cities plan
by: Steve Wien

The National League of Cities and the Stanford Legal Design Lab presented a comprehensive municipal approach in 2021 titled, "Eviction Prevention: A Guide for Local Governments." It places an emphasis on identifying those most in need.

Editors Comment: Yes, this is an excellent resource.

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