The Eviction Process
A landlord may try to evict a tenant for failing to comply with the terms of the lease agreement. These reasons may include failure to pay rent, permitting persons not on the lease to live in the dwelling, or violating other material terms of the lease agreement. However, a tenant always has the right to fight an eviction in court.
An eviction for alleged breach of the lease is different from terminating a lease at the end of its term, otherwise known as a “non-renewal.” If the landlord alleges breach of the lease, the landlord must prove the tenant violated the lease terms.
What Is the Eviction Process?
The eviction process is a formal judicial procedure that will include going to the Justice of the Peace (JP) court or possibly to a higher court. Evictions can be complicated. To fully understand the eviction process, carefully read this entire brochure.
STEP ONE: Notice to Vacate
The first thing a tenant should know is that a Notice to Vacate is not an eviction. A tenant does not need to move out merely because the tenant receives a Notice to Vacate from a landlord and a tenant does not violate the law by not moving out. A Notice to Vacate is simply a demand for possession of the property for a substantial breach of the terms of the lease. If a landlord wants to evict a tenant, the landlord must give proper notice and follow the correct steps in the judicial process.
The landlord must first deliver a written Notice to Vacate to the tenant. This notice must be in writing. The landlord must give the tenant at least three days to vacate unless a written lease sets a different time period, such as 24 hours. The notice must demand that the tenant vacate by a date stated in the notice. It does not have to state the reason for the eviction, although it is a good practice for the landlord to state the reason for the eviction in the notice.
The landlord may give the Notice to Vacate to the tenant in the following ways:
By personal delivery to the tenant or any person over 16 years of age residing at the unit;
By certified, registered, or regular mail;
By attaching it to the inside of the front entry door; or, as an alternative to #1, 2 and 3,
By attaching it to the outside of the front entry door in a sealed envelope on which is written the tenant’s name, address, and in all capital letters, the words “IMPORTANT DOCUMENT” (or substantially similar language) but only if:
There is no mailbox; and
The landlord cannot enter the unit because a dangerous animal, keyless deadbolt or an alarm system prevents the landlord from entering the premises or the landlord reasonably believes that harm to any person would result from personal delivery to the tenant or a person residing at the premises or from personal delivery to the premises by affixing the notice to the inside of the main entry door.
NOTE: If a landlord chooses to affix the Notice to Vacate on the outside of the front entry door in a sealed envelope, as cited above in #4, the landlord must also, not later than 5 p.m. of the same day, deposit a copy of the Notice to Vacate in the mail within the same county in which the dwelling in question is located. The Notice to Vacate is considered delivered on the date that the sealed envelope is both affixed to the outside of the door and is deposited in the mail regardless of the date the notice is received.
Period of Time Declared in the Notice to Vacate
The period of time declared in the Notice to Vacate is calculated from the day on which the notice is delivered.
NOTE: If the landlord has given the tenant a written notice or reminder that rent is due and unpaid, the landlord may include in the Notice to Vacate a demand that the tenant pay the rent or vacate.
STEP TWO: Eviction Citation and Service by the Constable
If the tenant does not move out by the deadline in the notice, the landlord must file an eviction suit with the Justice of the Peace (JP) court in the precinct in which the property is located. The citation will set a hearing date which must not be less than 10 days nor more than 21 days after the suit is filed. The landlord cannot remove the tenant or the tenant’s property until the eviction process is completed, unless the tenant abandons the property.
(Some leases give the landlord a lien on the tenant’s property under which the landlord can seize certain property and hold it until the rent is paid. Landlord’s Lien is discussed at length in our Landlord’s Lien brochure: here.)
After the landlord files the eviction suit, the court clerk will send the eviction citation to the constable’s office for delivery to the tenant. A constable will attempt to hand-deliver the citation to the tenant at the tenant’s home. After two unsuccessful attempts, the constable may slip the citation under the front entry door or attach it to the front door and mail a copy by first class mail.
STEP THREE: Trial
The trial is held on the date and at the time stated in the citation. No written answer is required in justice court. A tenant has a right to a jury trial. To request a jury trial, the tenant must file a written demand at the Justice of the Peace and pay a jury fee at least three days before the trial date.
Going to Court
The landlord and the tenant must appear before the Justice of the Peace on the trial date and be prepared to present their case. The judge will make a final decision and sign a judgment stating which party is entitled to possession of the premises. A tenant should always request a copy of the final judgment from the court clerk.
Complying with the Judgment or Filing an Appeal
If the judgment is in favor of the landlord, the tenant will have five calendar days to make one of two choices:
Comply with the judgment by moving out of the dwelling or
Appeal the judge’s decision.
If the judgment is in favor of the tenant, the landlord also has five days to appeal.
If the tenant loses and does not move or appeal within five days of the judgment, the landlord may go back to the Justice of the Peace and pay for a writ of possession to have the constable remove the tenant. The constable will post a 24-hour notice on the front entry door of the unit prior to executing the writ of possession. If the writ of possession is executed, the constable will remove the tenant and the tenant’s belongings will be removed from the dwelling at the discretion of the landlord.
Appeals can be complicated and this brochure does not cover all related information. It is strongly advised that you consult an attorney.
The information in this brochure is a summary of the subject and other pertinent matters. It should not be considered conclusive or a substitute for legal advice. Unique facts can render broad statements inapplicable. Anyone needing legal assistance should contact an attorney.
For information regarding filing a claim in small claims court, go to this page.
The Telephone Counseling Line provides education and information regarding residential tenant-landlord disputes. Lines are busy, and callers are encouraged to keep trying. Please call us at 512-474-1961.
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The In-House Counseling Program provides 30-minute in-house counseling sessions to tenants and landlords who have questions regarding their rights or responsibilities.