If you want to avoid, fight or delay an eviction, your first step is to read up on the law in your state or city. As you educate yourself about eviction law and procedure, you will learn how to file a stay of execution, whether to consider an appeal, and other ways to tackle the eviction issues.
According to mythology, the first eviction took place when Adam and Eve were expelled from the Garden of Eden, and other "get out" orders have followed thick and fast on their heels. Today, all states allow landlords to oust a tenant who breaks the law or violates terms of his rental agreement, and most also allow evictions of a tenant who doesn't. In this day and age, where the housing market is tight and homes are hard to find, eviction is a fate most tenants would rather avoid. If avoidance is not possible, the next best choice is to kick the actual move out day down the road. To succeed in avoiding or delaying an eviction, you'll need to get a good grasp of the landlord-tenant laws in your state and the court procedure involved.
What Is an Eviction Notice?
Okay, so Adam and Eve got evicted without an eviction notice. But even the most powerful landlords wouldn't get away with that anymore. Notice of an eviction is a must. Even if a tenant is behaving extremely badly, breaking provisions in the rental agreement and failing to pay rent, state laws do not permit landlord self-help measures. The landlord has to keep a cool head and follow the law. Her first step is to let the tenant know that his actions are noted and that the landlord is starting down the path toward evicting him.
Most states require that this eviction notice be in writing, and many specify exactly what the notice must contain. Usually, this includes the full name of the tenant, the address of the unit, the problem behavior and what the tenant can do, if anything, to resolve the issue short of being kicked out.
One type of eviction notice, generally termed the "pay rent or get out" notice, applies specifically to cases in which unpaid rent is the problem. The landlord must give the tenant a window of time to pay up or leave the premises. In California, for instance, this is a 3-Day-Notice to Pay Rent or Quit the Premises. The notice must state the exact amount of rent arrears, without including anything else in the amount, such as late fees or unpaid bills. If the tenant pays up within the time frame, nothing more will happen regarding the eviction. If he doesn't pay, he must move out or an unlawful detainer action will be filed in court against him.
If a tenant violates another specific provision of the lease or rental agreement, and it is one that can be fixed, the landlord might file a similar notice, giving the tenant a window of time to remedy the situation. For example, if the rental unit does not permit pets and a tenant sneaks in a cat, the notice would give him a window of time to make the unit pet-free as required by the terms of the agreement. Otherwise, he and his cat should leave.
Sometimes, in jurisdictions without rent control, a landlord simply wants the tenant to move out. In these no-cause jurisdictions, the only thing required is an appropriate notice. The landlord can prepare a notice telling the tenant that, as of a certain date, she must move out. In most states, the required notice is 30 days or longer. This type of no-fault eviction is not an option for a landlord in rent-controlled jurisdictions where good cause is required for every eviction.
What Is Unlawful Detainer?
Unlawful detainer is the next step a landlord takes toward eviction. If a tenant behind in rent doesn't pay up and doesn't move out, or the tenant was given 30 days notice but is still there after the time period expires, the landlord still cannot use self-help. She must file a complaint in court charging the tenant with unlawful detainer. That means that the tenant is unlawfully holding onto the property when he has been told to get out.
This is not always an easy process. The landlord usually gets an attorney to prepare the complaint, but then it must be served on the tenant. That means that a person not a party to the lawsuit must personally hand the court documents to the tenant. A tenant who knows the legal process may not answer that knock on the door and may otherwise avoid service. In time, the landlord will be allowed to use other methods to serve the tenant.
At that point, the tenant must file a response to the complaint. He has a set amount of time to do it. Other documents are exchanged, sometimes evidence is exchanged, and finally the landlord asks the court to set a date for trial. In some states, the tenant can opt for a jury trial if money is not a problem. This extends the length of trial as jurors are questioned and seated. Once each side presents its case, either the court or the jury makes a decision. If it is determined that the landlord has the right to evict the tenant, the court issues a judgment of possession. With this, the landlord gets a writ of possession that allows the sheriff to undertake the eviction. After a few days notice, the sheriff enters the premises, evicts the tenant and changes the locks.
Can You Reschedule a Court Date for Eviction
Court schedules are not set in stone, and even the strictest judges recognize that life happens, whether you are looking or not. Therefore, it is possible to reschedule a court date for an unlawful detainer case. If something urgent comes up, your mother dies in New Jersey or you come down with a terrible flu or break your leg, a court will likely grant you a new trial date.
However, you will have to find out the appropriate way to seek this type of continuance of trial. Usually, you must make a written motion to the court explaining the situation and how long a delay you require. You may have to present corroborating evidence, like a doctor's report, for example, to convince the court that the emergency is real. If the situation is last-minute and unavoidable, for instance, you are traveling to the courthouse when you are in a serious accident, notify the court as soon as possible.
On the other hand, remember that the judge has likely presided over many eviction cases. No tenant likes to be evicted and many are simply trying to stall the inevitable as long as possible. A wild, unsubstantiated story is not likely to fly.
How to Delay Eviction
Of course you want to push out the D-Day, or rather E-Day, the day you absolutely must leave your home or apartment because of eviction. It takes time to find a new place, time to pack up your stuff and move it. In some regions, like the Greater San Francisco Bay Area, you may not be able to find a new place nearby, so that means new schools for the kids, new commutes and, essentially, a new chapter of your life.
But there are no tricks to help you delay. If you live in a rent-controlled city, go to the Rent Board offices for help and advice. If you have the means, get an attorney on your side to take every legitimate step toward stopping the eviction. You can also try to negotiate with your landlord, explaining your situation and why it is so hard on you to leave. If you are not being evicted because you broke the agreement, this negotiation becomes easier. But even if you failed to pay rent, you may be able to strike a deal with the landlord by offering to leave without a court order a few months down the road. The landlord won't have to pay her attorney, so she'll save money that way.
When the matter does go to trial, show up and talk to the judge. Explain your situation. The judge may delay the eviction if you have small kids or are dealing with a medical issue. In any event, it never hurts to ask the court for help.
Some tenants take illegal or improper action to try to delay an eviction. But this can come back to bite you later when the landlord actually gets you before the court. Try every legitimate means to delay your eviction, but start looking for a new place now.
Can I Appeal an Eviction Judgment?
Once each side presents evidence and gives final arguments, the jury or judge makes a decision and there is a judgment. Either the landlord gets a judgment for possession or she does not. If she doesn't, you don't have to move. If she does, the cards are on the table.
But that's not all folks, at least it doesn't have to be all. Both sides have the right to appeal if they are not happy with the judgment and they believe that a higher court would strike it down. In some states, a losing party can also file a motion to set aside the judge's order. This needs to be done fairly quickly.
Don't appeal without consulting an attorney. You need to know how much the appeal will cost and how it works. Act without delay, however, since your timeline is short. There are strict deadlines to appeal and if you decide to do so, you had better have a good and legally valid reason to do it.
But note this: In most states, the fact that you file an appeal does not stop or delay an eviction. The eviction will proceed as scheduled unless you ask for and obtain a stay of execution.
How to File a Stay of Eviction
A "stay" means a court order that things will stay the same for a period of time or until something happens in the future, like a decision on appeal is entered. If you want to delay the eviction after a judgment has been entered against you in the unlawful detainer case, you must ask the court for a stay.
How do you do this? Well, you had better do it quickly and persuasively. In many states, like California, the time to do it is during the five day period after the sheriff gives you a five-day notice before changing the locks and escorting you out. And, some courts will never grant a stay of eviction so asking for a stay is hardly a done deal. But it's worth a try if you have good reasons for seeking a stay – either a good chance at winning the appeal, or a problematic or urgent situation that would make it disastrous for you to be kicked out immediately. Some states do not offer a form to fill out for a stay, and in these jurisdictions, you will have to figure out the best way to present your case on paper.