How eviction works

How eviction works

Eviction laws vary from state to state, but, generally, there are two lawful ways to evict someone:

  • legal or actual eviction; and
  • constructive eviction.

Legal or actual eviction

A landlord initiates legal eviction procedures because the term of the lease has ended; the tenant violates a law or ordinance; violates the requirements of the lease or the use of the premises as designated in the lease; fails to pay rent or damages the property; or threatens the landlord.

Constructive eviction

Constructive eviction occurs when the landlord causes the property to become uninhabitable or substantially interferes with the tenant’s ability to use the property for its intended purpose, which forces the tenant to leave. In this case, the tenant may terminate the lease without any further obligation.

Retaliatory eviction

Retaliatory eviction is where the landlord evicts the tenant in response to a tenant’s complaints against the landlord or involvement in activities with which the landlord does not agree. Retaliatory eviction is often illegal, particularly if the landlord begins eviction procedures with a certain time following the tenant’s act (e.g., within 90 days).

Illegal actions

A landlord cannot evict a tenant based on discriminatory factors, e.g., race, sex, religion). And a landlord cannot evict a tenant by changing the locks on the residence, placing a lien on the tenant’s personal property, removing the tenant’s personal property from the premises, or shutting off the tenant’s utilities.

Procedures for a legal or actual eviction

The landlord must provide written notice of the eviction to the tenant. The date by which the tenant must move out (e.g., 3 days, 30 days) differs according to the cause of or reason for the eviction and the laws of the state in which the eviction is occurring. If the deadline specified in the written notice passes and the tenant has not moved out, the landlord files an eviction lawsuit, and the tenant receives a summons to appear at a hearing. If the court issues an eviction notice, the tenant must vacate by a specified date; if the tenant does not move out, law enforcement may remove the tenant without further court action.

If back rent is due or the tenant has damaged or destroyed the property, the landlord may also sue for damages. And if the tenant has threatened the landlord, the landlord may ask the court for a temporary restraining order.

Actions renters can take

Renters should become familiar with the landlord-tenant laws in their state, including how much notice a landlord is required to provide in an eviction notice.

If a landlord initiates eviction procedures, the tenant should consult with an attorney who can advise the tenant as to possible defenses and arguments against eviction. Here are some examples: if the landlord evicts because the tenant is late paying the rent, but has accepted late rent payments in the past, the tenant may be able to avoid the eviction;

if the tenant is being evicted for failure to pay rent and pays the amount due before the deadline, he or she cannot be evicted; if the landlord evicts the tenant simply by changing the locks on the premises, the tenant may terminate the lease and sue for damages; and if the premises are destroyed through no fault of the tenant, the landlord has no action against the tenant, and the tenant is released from all further obligation on the lease.

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