Your landlord cannot simply go to court and get an order to evict you. Rather, your landlord must first terminate your tenancy with a notice explaining the landlord's reasons for termination and a time period to either cure (fix) the problem (if given the option), or move out of the rental unit. If you refuse to move out or cure the problem, you will not be automatically evicted when the time period expires. Instead, your landlord can then file with the clerk of court the appropriate legal document to begin the eviction process.
You can take steps to stop or delay eviction when you receive a termination notice. Even when your landlord has already filed an eviction lawsuit, there might still be ways to postpone or even prevent eviction.
The laws in your area might refer to a termination notice as an eviction notice, a notice to cure or quit, a notice to pay rent or quit, a notice to quit, or an unconditional notice to quit. No matter the name, the notice means that your landlord wants to end your tenancy.
Your landlord must closely follow the applicable state statutes or local ordinances about serving the notice. These laws state what type of notice is appropriate, as well as how your landlord must send it to you, whether it be by certified mail, hand delivery, or posting it on the door of the rental unit. Your landlord will likely send you one of the following types of notices:
Once you've received an eviction notice, you can prevent your landlord from filing an eviction lawsuit by taking one (or more) of the following actions:
If you don't cure or move out by the deadline in the eviction notice, your landlord can file an eviction lawsuit. In order to delay or stop the eviction at this point, you will need to present evidence to the court as to why your landlord can't legally evict you.
Carefully examine all documents you receive to determine what the landlord is demanding in the lawsuit. If you disagree with what's stated in the documents, let the court know, and present evidence supporting your position. You will also need to tell the court about any of the following defenses to eviction if they apply in your situation:
Errors in serving you with documents can also be a defense. For example, most eviction lawsuits begin when the landlord files a summons and complaint. Your landlord must deliver these documents to you in the manner required by law. Depending on state and local law, this can be accomplished by personally serving you with the documents or by using certified or registered mail, return receipt requested. Some states allow landlords to accomplish service by "posting" the complaint on the door of the rental property.
Another common procedural error occurs when landlords fill out court forms improperly. Evictions are usually tried in small claims or magistrate's court, and landlords often use a standardized form from the clerk of court to begin a lawsuit. You'll want to make sure, for example, that the appropriate boxes have been filled in, the correct address of the rental unit is listed, and that the amount of monthly rent owed is correct. If the form is not completed properly, the eviction process could be delayed or the suit dismissed in its entirety.
If the court sides with your landlord and orders an eviction, you have the right to appeal the ruling. You might consider appealing if, for example, you believe the court made an error or you discover further evidence to support your case. In many states, the time in which to appeal is quite short, but state laws differ. Most of the time, when you appeal an eviction order, your case will be heard de novo, meaning you'll appear before a new judge and get a second trial, without the new court reviewing or considering the small claims court's decision. Appealing will delay any physical eviction.
If your landlord prevails at the hearing in small claims court and you don't appeal, your landlord will then have to request a writ of possession from the clerk of court. A writ is simply an order by the court, and, in eviction actions, a writ of possession is an order to law enforcement to remove the tenant and the tenant's personal property from the rental premises. Depending on how busy the courts and law enforcement are, it could take months before a deputy is ordered to evict a tenant on a certain date. You can remain in the rental until law enforcement physically removes you, but keep in mind that you'll be responsible for paying the rent until the day you're kicked out.
Each state has its own body of landlord-tenant laws regarding the legal topics discussed above. These laws are found in the state's statutes, which you can find on the Library of Congress' website. Always check your state's statutes before deciding on a plan of action if you receive a notice of eviction or are to appear at an eviction hearing. You'll also want to check your local ordinances—Municode.com can be a good place to start your legal research. Also, many states have legal aid offices that offer assistance to tenants going through the eviction process—search online for your city's or state's name and "tenant assistance."
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