Eviction Proceedings in Small Claims Court

Some things to consider before bringing an eviction proceeding in small claims court

In some states, it is legal to do some types of evictions (known technically as "unlawful detainer," "summary dispossess," or "forcible entry and detainer," depending on the state) in small claims court. A few larger cities even have separate landlord-tenant courts that amount to small claims courts for this specific purpose.

Landlords should have a simple and cheap way to free themselves of tenants who don't pay their rent. But in states that don't have special landlord-tenant courts, the only practical method is to file an unlawful detainer action in formal court. Traditionally, this has required the expense of a lawyer, though more and more landlords are learning to handle their own eviction actions.

Formal court, though less friendly to nonlawyers than small claims court, may actually be preferable when you have a choice. The small claims court rules, even in those states where evictions are allowed, tend to limit a landlord's rights when it comes to getting the tenant out in the minimum time and getting a judgment for the maximum amount of rent and other damages. In a few states' small claims courts, a losing tenant even has an automatic right to appeal the eviction judgment and to stay in the rental unit while the appeal is pending, despite the fact that the tenant isn't paying rent and hasn't posted bond.

So before you bring an eviction action in small claims court, find the answers to the following questions by reviewing your state's small claims court rules:

  • If you win an eviction order, can you get the sheriff or marshal to enforce it immediately?
  • If the defendant appeals, can he or she stay in the dwelling while the appeal is pending?
  • Can you sue for enough damages to fully or at least mostly cover your legitimate claim for back rent and damages to the premises?
  • If the defendant can stay in the dwelling during an appeal, is there a requirement that he or she must post some money in the form of a bond that will go to you to cover lost rent if the appeal fails?

If you decide to go ahead with an eviction in small claims court, you must prove that the rent was not paid and that a pay-or-quit notice was properly served. Bring a copy of this notice to court along with an appropriately completed Proof of Service form. The fact that a tenant is suffering from some hardship, such as illness, poverty, birth of a child, and so on, is not a defense to failure to pay rent. Possible tenant defenses are discussed above. In most states, the tenant may claim, as a defense, that the rental property was uninhabitable. But remember, a tenant cannot legally raise the existence of a defect for the first time on the day of the court hearing. The landlord must be given reasonable notice that a defect exists before the tenant withholds rent or makes repairs.

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