An eviction is a process landlords begin when tenants have not paid the rent or have violated the lease. The landlord demands the tenant fix the situation or move out of the unit. The method sometimes starts with a notice giving the tenant three days to fix the matter, or they’ll find themselves in court. There, a judge can decide whether the tenant has to move out (eviction) or if they get to remain (dismiss the lawsuit to force them out), or the case is dismissed by agreement (stipulation between both parties) sometimes for a payment set-up or a move-out date.
A tenant can be forced to vacate the premises only after they have had a court date where a judge rules in the landlord’s favor. Then the judge orders the sheriff to take the tenant off the property. The landlord cannot modify the locks, throw the tenant’s stuff out or take any other steps to evict without a writ from a judge. The sheriff’s department is the only one who can physically move the tenant out. There are many ways to get tripped up, so it’s a good idea to consult with an experienced landlord-tenant lawyer, such as the ones at Express Evictions, when evicting a tenant.
A landlord might not file an eviction process in court unless the tenant fails to pay the outstanding rent inside three days once they are served with a written demand for payment.
A 3-day eviction notice should be served in one of the following three ways:
- By delivering a copy of the notice to the tenant
- By leaving a copy with somebody age 13 or older who resides at the premises, or
- By sending a copy to the tenant by certified or mail, return receipt requested.
In instances where no one is in actual possession of the premises, then posting the 3-day notice on the front entrance can be enough. Caution: If the tenant remains residing in the flat, however much they are absent, then they technically remain in “actual possession,” and therefore a posting of notice alone will not be permissible. If certified mail does not work, you will have to serve him personally. Judges can dismiss eviction actions brought against tenants in “actual possession” if the five-day notice was announced on, or slipped under, the front entrance door. It makes no distinction whether the tenant received the notice or was alert to its existence.
A failure of strict compliance with the law on serving notices and with every aspect of the case can get the eviction thrown out of court.
After the 3-day notice has been served, the person who delivered the notice ought to complete the affidavit of service on the second page (which includes notarization) and return a duplicate copy to the landlord.
Landlords should then refuse to accept a partial payment of back rent if they want to continue moving forward with the eviction. Many states enable a landlord to accept partial payments of back rent without nullifying the notice or otherwise destroying an already-filed eviction action. But some 3-day notices include specific language that only “full payment” of all overdue rent can “waive the landlord’s right to terminate the lease.” Therefore we have included that language in the sample 3-day notice at Express Evictions.
Any acceptance of partial back rent by a landlord can release tenants from the requirement to pay all remaining unpaid rent delineated within the 3-day notice period. In other words, a landlord who accepts any partial payment of back rent has to begin all over once more with a new 3-day notice and a new lawsuit. This can add weeks to the process of eviction.
It appears silly that a landlord ought to be forced to decline a proposal of partial back rent if he wants to continue with an eviction. However, that is the law in many tenant-friendly states. If a considerable partial payment from a perennial drawback tenant is too good to refuse, the landlord has the choice of accepting the payment and filing a new 3-day notice or turning down a proposal that may be too good to ignore. If an eviction action has already been filed, a landlord who accepts a partial payment may need to dismiss the case and begin again with a new 3-day notice.
