Published on: September 1, 2009
Say the word “eviction”, and most landlords cringe in a manner usually reserved for when you hear nails on a chalkboard. Eviction actions, technically known as Summary Process, can be a dangerous labyrinth in which a landlord can be lost for what seems an eternity. However, as the name suggests, Summary Process is intended, and with the right approach can be, a summary process. This article is intended to identify some of the pitfalls which often arise in removing a tenant, and some suggestions on how to avoid these perils.
As a first step, a valid notice to quit must be served in all cases except where the term of the lease has ended. In fact, a valid notice to quit is a jurisdictional pre-requisite to the filing of an eviction action. In other words, a defect in your notice to quit, no matter how insignificant, leaves the court with no right to hear your case. As such, the preparation of a valid notice to quit is essential to a successful eviction action. Some important considerations in preparing your notice to quit are as follows:
- You must name all adult occupants of the subject apartment. When in doubt, err on the side of safety and include the language “All Occupants”. Likewise, if the resident is known by more than one name, use an “a.k.a.”. You do NOT need a separate notice to quit for each person. One notice to quit naming all of the adult occupants is sufficient.
- You must state the address of the apartment correctly. Check the address against the lease. If there is a question, name both addresses. For example, “Apartment A, a.k.a. Apartment #1”. This often happens when the post office address is different from that used by the property or state agency.
- If you are evicting a tenant at will for non-payment of rent, specific language must be included in the notice to quit. This includes cases where the lease has expired and you have accepted rent. “Notice to Tenant at Will: If you have not received a notice to quit for nonpayment of rent within the last twelve months, you have a right to prevent termination of your tenancy by paying or tendering to your landlord, your landlord’s attorney or the person whom you customarily pay your rent the full amount of the rent due within ten days after your receipt of this notice.”This language should only be included when the resident is a tenant at will as adding this language to any other notice to quit could render the notice defective.
- Make sure that your notice to quit contains the statement that “Any and all payments shall be for use and occupancy only and shall not waive this notice to quit except as provided by law”. You should also endorse all payments received after the service of the notice to quit with the language, “For use and occupancy only. All rights reserved”.
- If you are serving more than one notice to quit on the tenants, i.e. one for non-payment of rent and one for cause, you must include the following language on both notices, “Please note that this Notice shall not waive the notice to quit dated __________ served upon you on ___________.” If you serve a notice to quit after you have already served one, the second notice could waive the first notice if you fail to add this language.
- Attach a return of service on each notice to quit indicating the date that it was served and the manner of service. Usually, service is either made in hand or by leaving a copy under the door (commonly referred to as “last and usual”). If service is made by last and usual, you must also note that a copy was sent via first class mail on the same date. You should also consider using a constable to make service of your notice to quit. While not required, it is useful in opposing a tenant’s claim that they did not receive the notice to quit. Service by a constable creates a rebuttable presumption that the tenant has been properly served.
- If the tenant has not cured the arrears stated in the notice to quit, you do not need to send another notice the following month. In fact, sending another notice could be deemed a waiver of the first notice, thus leading to unnecessary delay.
- You must state the proper amount which is due and include all rent that is due even if a grace period has yet to expire. For example, if it is June 1 and the tenant has not paid May rent you should also include June rent in the notice.
- If you are sending a notice to quit for cause, you must follow any guidelines provided in the lease. This is especially true in subsidized leases that contain strict requirements for notifying the tenant of certain rights.
- When a notice to quit is for violations of the lease, you must also be sure to specify the lease provisions that are being violated and give a detailed account of how the tenants are violating these lease provisions. Merely stating that the tenant has violated the lease is not enough. You will be limited at trial to those violations that are specified in the notice to quit.
Unfortunately, the harsh reality is that many tenants do not simply leave or pay when served with a notice to quit. If your reason for evicting the tenant is non-payment of rent, you will have to wait 14 days for your notice to quit to expire. This 14 day period does not include the day of service or the 14th day. For terminations of tenancies at will and terminations due to lease violations, your notice to quit will generally expire after thirty days or one full rental period after the termination notice, whichever is longer.
Once your notice to quit has expired and your tenants have failed to either pay the monies due or vacate your apartment, you can initiate a formal Summary Process action. This type of court proceeding is designed to get you a result relatively quickly, hence the name. As a special type of proceeding, there are very specific rules for how you commence and schedule your case.
Initially, you need to obtain a Summary Process Summons and Complaint from either the District Court or Housing Court that has jurisdiction over the area where the apartment is located. This is a specific form which must be obtained from the court. The completion of the form is somewhat self-explanatory as you simply fill in the blanks including the tenant names, addresses, and amount due. Most importantly, you are required to fill-in the dates on which certain events will happen in the case.
Probably the most common mistake in completing the complaint is listing the wrong dates. Therefore, you should be very careful to check and double check the dates you list. First, you serve the complaint on or before any given Monday. This is known as the “Service Date”. Unlike the notice to quit, such service must be made by a Sheriff or duly appointed constable in the area. The Summary Process Complaint must then be filed in the Court by the following Monday, known as the “Entry Date”. If the original complaint along with the return of service is not received by the Court on or before the Entry Date, your complaint will be deemed defective. The tenant then has until the following Monday to answer the complaint and/or file discovery which is appropriately deemed the “Answer date”. The final date listed in the Summary Process complaint is the trial date. This is usually scheduled for the Thursday after the Answer Date, although many of the Housing Courts schedule trial dates based on the location of the property. Check with the individual court for the specific day of the week that they conduct Summary Process trials. Finally, if the tenant files written discovery with the court and serves you with them on or before the Answer Date, the trial is automatically continued for two weeks.
At your trial, there are three general outcomes. The first is that your tenants do not show up and therefore a default judgment enters. You will then have to wait ten (10) days for final judgment during which the tenants can file a motion to remove the default based on a valid reason for not appearing and showing they have a meritorious defense to your case. The next option is that you enter into an Agreement for Judgment, which is an agreement between the parties that is entered by the court as a Court Order. Such an agreement either provides for the tenants to move or specifies the terms by which they will remain. If the tenants fail to comply with the agreement, you will be able to file a motion with the Court to have them held in contempt and/or removed from the apartment. The third option is to have a Summary Process trial in which you will present your case for possession to a Judge and have the opportunity to present witnesses and cross examine the tenants or any of their witnesses. The Judge will then render a decision.
If your tenants default, violate the Agreement for Judgment, or the Judge rules in your favor at the Summary Process Trial, you will be issued an Execution for Possession. This is a legal document which authorizes the Sheriff or appointed constable to recover possession of the property. The Sheriff or constable provides the tenant with not less than forty eight (48) hours notice prior to the scheduled move. If the tenant fails to move in this period, they then return with a moving truck and physically remove the tenants and their property. Unfortunately, the Landlord is responsible for paying for the costs of the move and for three (3) months storage for the tenants property.
Of course, in most cases a call to your attorney to prepare the notice to quit and summary process complaint will allow you to avoid the complexities of the eviction process. With the right knowledge, and a little patience, the eviction process can be handled in an efficient and effective manner.