An eviction is a legal procedure used by landlords to retake possession of a dwelling unit from a tenant. Evictions are regulated by state landlord/tenant law and, in some states, by rent control laws enacted by municipalities. The eviction process begins with a written notice from the landlord to the tenant that announces the landlord is terminating the tenancy as of a specified period of time or the landlord intends to terminate the tenancy if the tenant doesn't get back into compliance with the terms of the tenancy agreement.
For a landlord to serve a valid eviction notice, he must follow the applicable law. A tenant who receives an eviction notice must also follow the legal procedure set out in state or municipal codes. These rules vary considerably between jurisdictions, and a tenant's range of responses may or may not include a response letter to the landlord.
Types of Residential Tenancy
Every tenant has a contract with the landlord of the property or someone working as the agent for the landlord. This contract is usually a written one, signed by both parties. But it doesn't have to be in writing. A landlord-tenant relationship can also be created by a verbal agreement, called an oral contract.
There are two basic types of residential rental contracts, a lease agreement for a set period of time and the month-to-month, or periodic, tenancy. When the parties sign a lease, the tenant agrees to stay in the unit for a specified period of time, like one year or 18 months, paying a set amount, usually monthly, for the right to occupy the place. With a month-to-month tenancy, the tenant pays a set amount of rent every month for the right to occupy the premises.
Terminating a Lease Tenancy
A lease agreement gives a tenant the absolute right to occupy a unit for the time specified in the lease as long as she follows all of the lease terms. Those will vary from lease to lease, but all include the requirement that the tenant make timely lease payments to the landlord.
As long as the tenant follows the terms of the lease, she has the right to stay in the unit for the period of the lease. The landlord can terminate the tenancy at the end of the lease. If the tenant breaks any of the important terms of the contract, she is deemed to have breached the contract, and the landlord can terminate the tenancy. But landlords cannot terminate a lease tenancy for any other reason.
Terminating a Month-to-Month Tenancy
If the tenancy is month-to-month, the landlord works with a shorter time frame when it comes to terminating a tenancy. That is, rather than waiting to the end of the lease term, he usually can terminate a tenancy in 30 days with appropriate notice. Generally, he does not need a reason to do so as long as he provides proper notice.
However, some states allow cities to enact rent control laws. For example, in California, most of the large cities have rent control ordinances in place, including San Francisco, Los Angeles, San Jose and Sacramento. Rent control laws often require a landlord to have cause in order to terminate a tenancy. For example, failure to pay rent or conducting illegal activities on the premises are often good cause for evictions under these laws.
Notice to Terminate a Tenancy
A landlord must provide written notice to the tenant to terminate a tenancy, sometimes called a notice to quit. She cannot give this notice verbally or informally but must prepare a written document. The tenant has to get the written notice in advance of the termination date. Some states provide a particular form for a landlord to use to terminate the tenancy, while in others, any clear language will be sufficient.
State laws regulate the amount of notice that must be given. Usually, for a month-to-month tenancy, the minimum notice is 30 days, including an entire calendar month. To terminate a tenancy at the end of a lease term, the landlord must usually give notice at least 30 days before the lease is finished.
In California, if a month-to-month tenant has lived in a premises more than a year, the notice must be given 60 days in advance. To end the tenancy of a tenant in subsidized housing in California, a landlord must use a 90-day notice.
Notice to Quit for Cause
If a landlord believes that a tenant has violated one of the terms of the rental contract, he also has the right to terminate the tenancy. While all states allow landlords to proceed against a tenant who has violated a term of the contract, laws differ about how the landlord must proceed.
Each state has its own laws and regulations specifying the different reasons a landlord can end the tenancy and how the landlord must proceed. In some states, the landlord must give the tenant a chance to "cure" the violation. Rent control jurisdictions require landlords to follow even more rigorous procedures to terminate a tenancy.
Terminating a Tenancy for Cause: Example
In California a landlord can terminate a tenancy for cause with a 3-Day Notice if the tenant breaks the contract. Usually, this happens if the tenant:
- Does not pay rent when it is due.
- Does not follow the terms of the lease or rental agreement, like keeping a pet if pets are forbidden.
- Damages the property.
- Disturbs other people in the neighborhood, by having loud, late-night parties, for example.
- Does illegal things on the property, such as prostitution or drug sales.
To terminate a tenancy for cause in California, the landlord must prepare and serve the tenant with a particular notice. In most cases, the landlord serves a 3-Day Notice to Quit. But a landlord must give a conditional notice to quit when a tenant fails to pay rent, which is called a 3-Day Notice to Pay Rent or Quit.
This type of conditional notice is also required if the broken contract term can be remedied, like keeping a pet against the rules. This is termed a 3-Day Notice to Quit or Perform Covenants. Essentially, the tenant must do what is required under the contract within three days or leave the property.
Understanding the Eviction Process
It is easy to confuse a notice to quit, or a notice terminating tenancy, with an eviction. In fact, these written notices are an essential first step in the eviction process. If a landlord sends a notice to quit or a letter terminating a tenancy in a city without rent control, and the tenant moves out, there is no court action for eviction required.
If the tenant receiving notice of a termination of tenancy doesn't move out, the landlord can ask the court to enforce the termination. The tenant has the right to file a response and can present evidence and arguments at trial. For example, in California, the landlord files a complaint for unlawful detainer which is served on the tenant. This is a continuation of the eviction process and can result in the sheriff escorting the tenants off the premises and changing the locks.
These steps require a court process. Self-help evictions, where a landlord changes the locks and tosses the tenants' belongings in the street, are not legal. Not only are they contrary to law, but the tenant may be able to sue the landlord for losses and damages for unlawful eviction.
Communicating With the Landlord
If a tenant believes that the landlord is relying on erroneous information about the tenancy terms or about her behavior, she can respond to a notice to quit by communicating in writing with the landlord, the landlord's agent or the landlord's attorney, whomever signs the notice to quit or the notice terminating the tenancy. The purpose of the tenant's letter is to set out facts that clarify the misunderstanding.
Obviously, the contents of the letter will vary depending on the circumstances. The tone should be factual, rather than emotional, and the content should be written clearly. For example:
- If a landlord sends a notice to pay rent or quit, the tenant could remind the landlord in a letter that she handed him her check for that month's rent, stating the date she gave it to him and enclosing a copy of the check.
- If a landlord sends a notice to quit alleging illegal drug sales on the property, the tenant could state that nobody has ever sold illegal drugs in the unit.
- If a landlord sends a notice to quit because a cat is being kept in the unit, the tenant could state in a response letter either that the rental agreement gives her the right to keep a cat, quoting from the document; deny that there is or ever was a cat in the unit; or explain the circumstances, such as that her mother was visiting for a weekend with her cat but they have now left.
Eviction Dispute Sample Letter
No two eviction dispute letters are likely to look alike. While you may find a sample response letter to an eviction notice online, it is unlikely to be of much help. In fact, unless there is a real misunderstanding that can be easily cleared up, writing a letter response may not be very useful in dealing with the eviction.
The most important thing to remember is that eviction is a court process. Court rules set out a process that affords each party a chance to respond to the other's arguments and present his own evidence. A tenant needs to stay on top of the court process and respond to the landlord's papers in the manner required by the court within the court deadline.
For example, if a tenant is served with court papers, for example, in California, a complaint for unlawful detainer, he must file a form response to those papers. In many states, the landlord must include with the documents served a blank copy of the response or answer document and instructions for filling it out and filing it with the court. It is critical to watch the deadlines and get the legal papers timely filed.
Read More: How to Write an Eviction Letter
Available Legal Assistance
It is usually a good idea for a tenant served with eviction papers to seek legal assistance before responding to the documents. Some courts offer tenants assistance with preparing responses to eviction papers, and tenant rights organizations often offer legal assistance for free or at low cost. If the unit is covered by a local rent control ordinance, the rent board may also provide help.
If money is not an issue, a tenant can hire a private attorney who specializes in landlord/tenant law to advise her of her rights and walk her through the legal process to oppose the eviction. Preparing a defense and obtaining legal counsel are alternatives much more likely to lead to a successful result than writing a response letter to the landlord.