Landlord Eviction: Is It Done Through the Court?
Your landlord wants you out--or you're a landlord, who wants a tenant out; the question is, how does landlord eviction work? Can it only be done through the courts? Or can a landlord simply "change the locks" and/or shut off utilities and services?
Residential vs. Commercial
The rules are different—at least in many states—for residential and commercial tenants. Commercial tenants generally enjoy fewer—in some states (e.g. New Jersey), far fewer--protections than residential tenants; that extends to evictions. In many states, there are processes or mechanisms by which commercial tenants can be evicted in a much more streamlined fashion than residential tenants. If you are a commercial landlord or a commercial tenant in an eviction situation, consult with a commercial real estate attorney to see what your rights are in your state.
Self-Help Evictions of Residential Tenants is Not Allowed
“Self-help” is the term commonly used in court decisions to refer to landlord actions to evict an unwanted tenant. Changing locks; turning off water, heat, and/or power; moving the tenant’s possessions out . . . these are all examples of landlord self help. And they are illegal everywhere, at least as regards residential tenants: landlords may NOT simply change the locks, etc. on unwanted tenants or those who breach their leases (or whose leases have expired). It doesn’t matter how justified it may appear; it’s not allowed.
What happens if the landlord resorts to self-help? Then he or she becomes liable to the tenant for costs and damages. In addition, an order may be issued by the court, requiring the landlord to allow the tenant to move back in.
Landlords Must Go to Court to Evict
If self-help is not allowed, what’s left? Court-ordered evictions. The only proper way to evict tenants—and that includes tenants whose leases are up or who have not been paying their rent—is by going to court. While the exact process and the terminology will vary state by state, the usual first step—which doesn’t always apply; it depends on the grounds for eviction—is to provide the tenant a notice to stop whatever is leading to the eviction. This notice usually provides three-to-five days’ notice in most states. If that doesn’t work, or it was a situation where the notice was not required (e.g. non-payment of rent, in many states), the landlord next files papers in court and serves them on the tenant, seeking an order or judgment of possession: a legal declaration that the landlord, not the tenant, has the right to the possession.
A court date will be granted for a trial on the order, and if the tenant has no defense or doesn’t show, the order or judgment will be issued. At some point (often two weeks) after that, the landlord can go back to court and get a warrant or writ which instructs local law enforcement—usually the sheriff—to evict the tenant and lock the doors.
So this two-to-three-step process (notice, which is not always required; going to court for a judgment or order; going back to court for a writ or warrant) is the only way to evict residential tenants.
How an Attorney Can Help
While eviction is one of the more straightforward, less complicated legal proceedings, it’s still a legal proceeding, and a lot rides meeting deadlines, getting the paperwork right, and raising issues in the correct way. Whether you’re a landlord or a tenant, an attorney can make navigating the process much easier and more certain.