Tenant Eviction Action Procedures
by Attorney William Bronchick, Legalwiz.com

As an investor working with tenants, you should be very familiar with the laws of your business. One of the more unpleasant experiences of being a landlord is when you are forced to evict a tenant for their violations of your lease agreement.

An eviction proceeding, usually called an "unlawful detainer" proceeding, is a lawsuit to obtain a court order to remove the tenant. It is not lawful to physically or constructively remove the tenant from the premises. No matter how upset you are, don't even consider changing the locks, shutting off the power or taking the front door out for "repairs."

Before you can commence the proceeding, you need to terminate the tenancy. You do this by serving notice on the tenant as required by your state law. For nonpayment of rent, the notice is typically three to five days. If the tenant has not paid the rent in full or moved out after that time, you can commence proceedings in court. A typical summary proceeding takes anywhere from ten to thirty days, depending on the backlog of cases in your County. The proceeding is informal, much like small claims court.

Once the court declares you the winner (called a judgment or order), a warrant (called a "writ" in some states) is issued. A warrant is a legal document that directs a sheriff, marshal, constable or other local official to forcibly remove the tenant from the premises. Few tenants are actually thrown out; the official usually changes the locks and removes the tenant's personal property. In some counties, you are required to hire the movers and store the tenant's property.

I recommend that you learn the landlord-tenant laws and the timetable for evictions in your state and county. However, I also recommend that you hire an attorney to file the court proceeding. Landlord-tenant law is not difficult to understand, but it is very technical. A minor flaw in your paperwork or procedure could mean having your case thrown out and having to start all over. Thus you should consider paying an experienced landlord-tenant attorney to do the job (make sure it is an attorney that specializes in landlord-tenant practice). Note: Some specific types of business or governmental entities may be required to hire attorneys to represent them in court when conducting eviction actions according to some state laws.

Lastly, join a local landlord's or real estate investors association and meet other experienced landlords. If you are not familiar with the law, you will eventually run across a "professional" tenant who will teach it to you. These type of groups also circulate lists of previously evicted tenants. This will aid you during the screening process for your next tenant so that you lessen the chances of re-renting the unit to a previously evicted tenant from someone else’s unit. TMHA Note: Civil eviction actions are a matter of public record. You can check all rental applicants against records of New Philadelphia Municipal Court or Tuscarawas County Southern District Court to see if the applicant has ever been evicted from a rental unit by the local court.

CONSIDER BRIBING THE TENANT TO LEAVE

Time is money when it comes to evictions. The longer the defaulting tenant stays in possession, the more money you lose. Consider waiving the rent owed and offering the tenant cash to leave immediately. This may seem contradictory to the "tough landlord" attitude, but it makes financial sense. Court is the last place you want to be. If you can settle the matter quickly without litigation, do it! Do not pay any money to the tenant until he vacates, cleans the unit, hands you the keys and signs a written release of liability against you (called "general release").

RECONCILE THE SECURITY DEPOSIT

Whether the tenant leaves voluntarily or by legal force, you need to deal with the security deposit. Whether or not you are entitled to keep the deposit, you must comply with state law. In most states you must return the security deposit within 30 days or send a certified letter to the tenant stating why you are keeping it. Even if you are entitled to keep the deposit, your failure to comply with proper procedure can result in a lawsuit against you for improper withholding. You can always sue the tenant in small claims court for rent owed and damages to the property, but you cannot withhold the security deposit without following the rules. TMHA Note: In the Tuscarawas County Court system, all successful eviction actions have a follow up hearing commonly known as a “Damages Hearing.” At this hearing both the landlord and evicted tenant can present evidence about the monies owed to the landlord. After this hearing, the Magistrate will make a decision as to who is owed what based on the evidence. Then a Judgment Entry is established as to what if anything is owed to the landlord. If the tenant does not pay, they would be subject to the wage garnishment process of the court should they be employed and the landlord wish to pursue this option.
 

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