What is an Eviction?
The eviction process is a statutory remedy that provides a quick, simple and inexpensive method of determining who is entitled to the possession of real property. The basic purpose of an eviction is to provide a person who is entitled to the possession of real property a legal remedy, rather than force and violence, to gain possession of the property from a person who in peaceable possession. Since the primary objective of an eviction suit is the recovery of possession of property, and the only issue tried is the question of right of possession, and eviction is not used to determine the title to the property.
Who has Jurisdiction and Venue?
A justice court precinct in which the real property is located has jurisdiction in eviction suits. Suits for eviction are subject to mandatory venue and must be brought in the county and precinct in which all or part of the premises is located.
What are the Procedures for Eviction?
1. The landlord must give a tenant who defaults or holds over beyond the end of the rental term at least three (3) days written notice to vacate before the landlord files an eviction suit, unless the parties have contracted for a shorter period in a written lease or agreement.
2. The notice to vacate must be given in person or by mail at the premise in question, as follows:
n Notice in person may be by personal delivery to the tenant or any person residing at the residence who is 16 years of age or older or personal delivery to the premises and affixing the notice to the main entry door.
n Notice by mail may be by regular mail or by registered mail to the premises in question.
3. If the tenant does not comply with the notice to vacate, the plaintiff or the plaintiff's authorized agent files a Petition for Eviction with the justice court, which must include the following:
n All information on the petition completed with all questions being answered to the best of the plaintiff's ability;
n A copy of the notice to vacate, dated and signed by the plaintiff or plaintiff's agent, including when and how that notice was delivered;
n A copy of the written lease agreement (if applicable);
n Money order or check for proper Filing and Service Fees.
4. When the plaintiff files the sworn complaint (Petition for Eviction), the Court will immediately issue a citation to the defendant which will command the defendant to appear before the Judge at a time and place named in the citation - that time being not more than 21 days nor less than 10 days from the date on which the citation is served.
5. Both the landlord and tenant must appear in Court on the designated date and time to present evidence. Each party will have the opportunity to present witnesses, documents, or any other evidence that may support their position.
6. If the decision of the judge trying the case is in favor of the plaintiff, the judge will render judgment for the plaintiff for:
n Possession of the premises;
n Plus court costs;
n Plus reasonable attorney's fees (if applicable);
n Rent damages (excluding all future rents and other damages).
7. If the decision of the judge is in favor of the defendant, judgment is rendered in favor of the defendant and against the plaintiff.
8. When the defendant, who has been duly served, totally fails to appear, and plaintiff appears in person or by authorized agent, the judge will proceed to hear sworn testimony, and, if it appears that plaintiff is entitled to recover, render default judgment for the amount proved by plaintiff's sworn evidence.
What happens next?
1. A landlord who prevails in an eviction action is entitled to a judgment for possession of the premises.
2. In addition, the landlord is entitled to a Writ of Possession.
3. The writ of possession will order the officer executing the writ to:
n Post written notice on the exterior front door of the rental unit that a writ has been issued and will be executed on or after a specific date and time no sooner than 24 hours after the warning is posted;
n Deliver possession of the premises to the landlord;
n Instruct the tenant and all persons claiming under the tenant to leave the premises immediately, and, if the persons fail to comply, physically remove them; Instruct the tenant to remove or to allow to be removed all personal property from the rental unit, and, if the persons fail to comply, the officer may engage the services of a bonded or insured warehouseman to remove and store all or part of the property at no cost to the landlord.
4. A writ of possession may not be issued before the sixth day after the date on which the judgment for possession is rendered.
How does a Tenant or Landlord Appeal?
1. Any party that does not prevail at trial may appeal the Justice Court ruling and receive a new trial at County Court. Although an individual may represent themselves in County Court, the complicated rules of civil procedure may be more strictly enforced, and parties may wish to seek legal counsel.
2. The party wishing to appeal must file a notice of appeal with the Justice Court no later than 5 days after the judgment is signed, along with the appropriate appeal bond. The amount of the bond is set by the Judge at trial.
3. When the appellant is unable to pay the costs of appeal, or file a bond as required, the appellant shall nevertheless be entitled to appeal by making strict proof of such inability by filing a pauper's affidavit within the same 5 days of judgment.
n A landlord may contest a pauper's affidavit on or before the fifth day after the affidavit is filed.
n If the landlord contests the affidavit, the Justice Court will notify the parties and hold a hearing to determine whether the tenant is unable to pay the costs of the appeal or file an appeal bond.
n The hearing will be held not later than the fifth day after the date the landlord notifies the court of the landlord's contest.
n At the hearing, the tenant has the burden to prove by competent evidence that the tenant is unable to pay the costs of appeal or file and appeal bond.
4. If the appeal papers are properly filed and the appeal bond is in place, the tenant may stay in the leased property until the case is determined by County Court. Note: If the eviction was for failure to pay rent, and a pauper's affidavit has been filed and approved, the tenant must deposit one month's rent within five days of the filing of the affidavit with the County Clerk. If this is not done, the tenant may be removed from the leased property prior to the trial in County Court.
5. The tenant must file a written answer in the County Court within eight (8) days after the Justice Court files the transcript with the County Court. If the tenant fails to file a written answer within this time period, the landlord may obtain a default judgment and the appeal will be lost without a trial.
6. Once the appellant has paid the filing fees to the County Court, the trial, as well as all hearings and motions, will be heard in the County Court.