Landlord And Tenant Law: Eviction For Nonpayment Of Rent

The most common type of legal action that arises out of a landlord and tenant relationship is a lawsuit filed to evict a tenant for nonpayment of rent. In order for a landlord to be able to prevail in this type of action, certain specific steps must be taken.

The first step in the eviction process is the preparation and service on the tenant of what commonly is called a "Three Day Notice." The Three Day Notice advises the tenant that because the rent is unpaid the landlord intends to exercise his or her rights to regain possession of the property in question. The notice itself gives the tenant three days to pay the rent that is due and owing together with any appropriate and applicable late fees and other charges.

As an aside, while this notice commonly is referred to as a Three Day Notice the statutory provisions in some states actually require a tenant to be given precisely 72 hours from the date such a notice is served in order to bring the rent current and to clear up any other related, appropriate charges being assessed by the landlord.

The running of the time for payment established in the notice commences running from the point that the notice itself is served on the tenant. The notice can be served either in person or by posting at a conspicuous location at the rental property itself.

If the tenant does make payment within the 72 hour or three day time period, the tenancy continues. If the tenant does not make payment pursuant to the terms of the notice, the landlord then is in a position to file an eviction action.

The statutes and regulation in different states do vary to some degree when it comes to eviction actions. In some states, an eviction action moves at a very fast pace. In other states, an eviction case is not on as quite of an accelerated schedule but will still move forward fairly rapidly.

Generally, an initial hearing will be held at which time the tenant can request a trial. The trial itself normally will occur in fairly short speed. At the trial, the landlord will present evidence supporting the nonpayment of rent issue. The tenant will present any defense that he or she might have. In reality, in a nonpayment of rent case, the only real defense in most states is that the tenant did, in fact, pay the rent. Most states do not permit a tenant to withhold rent even if there are problems associated with the premises. (There are other remedies available to a tenant in such situations.)

If the landlord does prevail and demonstrates that the tenant has failed to pay the rent due and owing and that no legal reason existed for the nonpayment, the court will issue what is known as a writ or restitution or writ of assistance (or something to that effect). This writ (or order of the court) directs the tenant to vacate the premises. If the tenant does not vacate the premises promptly the writ further directs the sheriff of the county in which the property is located to remove the tenant from the premises.