What is an Eviction? New Rules will apply Sept. 1, 2013 on all cases.
The eviction process is a statutory remedy that provides a quick, simple and inexpensive method of determining who is entitled to the possession of real property. The basic purpose of an eviction is to provide a person who is entitled to the possession of real property a legal remedy, rather than force and violence, to gain possession of the property from a person who in peaceable possession. Since the primary objective of an eviction suit is the recovery of possession of property, and the only issue tried is the question of right of possession, and eviction is not used to determine the title to the property.
What are the Procedures for Eviction?
1. The landlord must give a tenant who defaults or holds over beyond the end of the rental term at least three (3) days written notice to vacate before the landlord files an eviction suit, unless the parties have contracted for a shorter period in a written lease or agreement.
2. The notice to vacate must be given in person or by mail at the premise in question, as follows:
Notice in person may be by personal delivery to the tenant or any person residing at the residence who is 16 years of age or older or personal delivery to the premises and affixing the notice to the main entry door.
Notice by mail may be by regular mail or by registered mail to the premises in question.
3. If the tenant does not comply with the notice to vacate, the plaintiff or the plaintiff's authorized agent files a Petition for Eviction with the justice court, which must include the following:
1. All information on the petition completed with all questions being answered to the best of the plaintiff's ability.
2. A copy of the notice to vacate, dated and signed by the plaintiff or plaintiff's agent;
A copy of the written lease agreement (if applicable).
3. Money order or check for proper filing and service fees.
4. When the plaintiff files the sworn complaint (Petition for Eviction), the Court will immediately issue a citation to the defendant which will command the defendant to appear before the Judge at a time and place named in the citation - that time being not more than 10 days nor less than 6 days from the date on which the citation is served.
5. Both the landlord and tenant must appear in Court on the designated date and time to present evidence. Each party will have the opportunity to present witnesses, documents, or any other evidence that may support their position.
6. When the defendant, who has been duly served, totally fails to appear, and plaintiff appears in person or by authorized agent, the judge will proceed to hear sworn testimony, and, if it appears that plaintiff is entitled to recover, render default judgment for the amount proved by plaintiff's sworn evidence.
What happens next?
1. A landlord who prevails in an eviction action is entitled to a judgment for possession of the premises.
2. In addition, the landlord is entitled to a Writ of Possession, which can also be filed at the time of the eviction. A Bond would need to be in place before the Writ of Possession would be granted. A normal bond would be two times the rental fee.
3. The writ of possession will order the officer executing the writ to:
Post written notice on the exterior front door of the rental unit that a writ has been issued
and will be executed on or after a specific date and time no sooner than 24 hours after the warning is posted.
How does a Tenant or Landlord Appeal?
1. Any party that does not prevail at trial may appeal the Justice Court ruling and receive a new trial at County Court. Although an individual may represent themselves in County Court, the complicated rules of civil procedure may be more strictly enforced, and parties may wish to seek legal counsel.
2. The party wishing to appeal must file a notice of appeal with the Justice Court no later than 5 days after the judgment is signed, along with the appropriate appeal bond. The amount of the bond is set by the Judge at trial.