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What to Do When You Have to Evict

Evictions are never ideal. But sometimes evicting a tenant is a better option than trying to manage the existing situation. “Most property managers realize that it’s more important to get their property back than to keep dealing with a tenant who could potentially damage their property,” says Herb Lambert, a real estate broker and property manager in Woodland Hills, Calif., who has dealt with 12 evictions throughout his 17-year career. “If negotiations and discussions have failed with your tenant, you have no choice but to evict.”

Here’s a general overview of the eviction process to help you get started.

1. Give Proper Notice

Before you make an official complaint, give the tenant a concise letter to explain why he or she is in default under the lease. Be sure to include your signature, says Ted Spaulding, a business attorney at Boling Rice LLC in Cumming, Ga., who has seven years of experience representing landlords and tenants in eviction cases. List the number of days a tenant has to resolve the issue, whether it’s overdue rent (the most common dispute between tenants and landlords), removing a pet from a property, or some other obstruction of the lease. Keep in mind it is illegal in most states to turn off a tenant’s utilities, change the locks, or remove personal property from the rental before they have vacated, Spaulding says.

2. File a Complaint with the Court

If the tenants do not meet the requirements of the eviction notice, your attorney should file a formal complaint at the courthouse, the municipal division of circuit court. The complaint must then be served to the tenant in a way that is approved by the court, through a sheriff, a hired process server, or any other legal official. The lawsuit will require the tenant to respond and appear in court within a certain amount of days. It may be 45 days or more before a court date is set, Lambert says. Most property managers hire a lawyer or have one appointed by the court to help with this process. 

3. Prepare Documents for Court

Keep records and a paper trail of what you’ve done thus far. This is something you should do from day one with all your tenants. Before you bring your case to court, you’ll need to gather and prepare all documents that cover your relationship with the tenant, including a copy of the eviction notice, the signed lease, maintenance records, and dated photos of the property. 

4. Attend the Court Hearing

If the tenant decides to settle the lawsuit in court, a judge will hear the case at the court where you filed the lawsuit. Keep in mind that the tenant could assert certain defenses in court about how you maintained the property, including maintenance repairs that have gone unfixed, from faulty heating to holes in the walls. A tenant may also try to prove that they are, in fact, up-to-date on their rent. According to Mark D. Pearlstein, a Chicago real estate attorney at Levenfeld Pearlstein, LLC, if you are not prepared with ample documentation, the tenant may win the case and stay put in the unit.

5. If You Win Your Case

If you win the case, the sheriff’s office can physically evict or lock out the tenant, if needed. “But that doesn’t mean the landlord can just take back the house or property immediately,” Lambert says. “They have to wait until the tenant actually vacates the premises. It could take two weeks or up to 30 days for the tenant to vacate, depending on the court’s ruling.”

6. Additional Considerations

If the tenant wins the case, they usually have the right to stay in the property until the termination of the lease, and you may have to cover the legal fees, Spaulding says. A tenant could also declare bankruptcy, which means the case could fall under the governance of the bankruptcy court instead. In that case, you would have to deal with two court cases instead of one.

7. Preventative measures

An eviction should be your last resort. If you are considering taking such legal action, it’s important to understand your rights and know your facts. The eviction process varies, so check your state government website and search under “landlord and tenant rights and laws” for specific guidelines.

Spaulding says the best tool for a landlord or property manager is a strong, well-worded lease, which will automatically protect you and your property from any liability. Make sure the lease states that the tenant will cover all legal fees during an eviction, Spaulding says, to save you from paying them yourself. “From day one,” Spaulding says, “get yourself well-protected through the lease.”

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