If you're a landlord who needs to evict a tenant, chances are that you'll need some professional legal help. Here's why:
- Details. In most states an eviction lawsuit (also known as an unlawful detainer) is full of many small, picky steps that must be accomplished correctly before the case can move on. If you make a mistake, you start over (or, worse, the tenant wins on a procedural error). There's a reason for this: These cases move very quickly through the courts, much faster than regular civil trials like, for instance, personal injury lawsuits. The tradeoff for speed is a very controlled process.
- The stakes. An eviction lawsuit seeks to take someone out of their home—in many ways, it's much more serious than a squabble about money. No matter how justified the landlord may be, most judges look long and hard at whether the process was done right.
- The setting. In most states, eviction lawsuits are heard in regular trial court, where the rules of evidence and pleading procedures are set up for lawyers to navigate. Unlike small claims court, where procedures are informal and where non-lawyers fare just fine, trial court is strict. If your experience is with small claims, you're in for a culture shock when you get to trial court.
Prepare Your Case
There's a lot you can do to make your lawyer's work efficient and successful. The following steps will give your lawyer the information he or she needs to evaluate the case and prepare.
- The tenant's file: general information. Hopefully, you've kept copies of essential papers for this tenancy, such as the lease and application. (Sensitive personal information, like the credit report, should have been discarded, in keeping with the federal Disposal Rule, a federal law that requires landlords and employers to safely discard sensitive personal information when it's no longer needed.)
- Copies of past rules, rent violations. If you've had to "write up" your tenant, and if you've sent "pay or quit" or "cure or quit" notices, be sure to gather those.
- Your notes. Careful landlords make a note of repair requests, complaints from other tenants or neighbors, and so on, including any police or incident reports. Bring these along; let your lawyer decide whether they're relevant.
If you are a member of a landlord's group or association, you might check with other members for advice (or sympathy). People who have gone through an eviction lawsuit, though not as battle-scarred as those who have weathered a divorce, may have hard-won advice that you'll appreciate.
Before and During the Trial
Once you have legal counsel, you can step back and let the lawyer handle the problem. After all, that's part of what you're paying for. Resist any temptation to argue or initiate negotiations with your tenant. Doing so without your lawyer's guidance risks compromising your case, in ways you may not be aware of.
If you have contact with your tenant, do your best to remain above the fray, which may be difficult if the tenant lives on the same property. Unpleasant exchanges can escalate and could weaken your case. Remember, in court you want to be the picture of an evenhanded, deliberate businessperson, who does not react emotionally.
Lockouts and Property Seizure
No matter how egregious the tenant's behavior, landlords are never legally justified in resorting to "self-help" measures, taken to pressure the tenant to leave on his own. These illegal tactics include:
- Lockouts. You can't change the locks, or remove the doors or windows.
- Property seizure. Entering and seizing the tenant's property, whether to keep it to compensate you for lost rent or damage, or putting it on the street to send a not-too-subtle message, are also illegal.
Landlords who engage in illegal self-help measures face fines and, in some states, directives that the tenant be allowed to remain on the property.
We know of only one book, The California Landlord's Law Book: Evictions, which landlords can use themselves to prepare and handle an eviction (if such books exist for other states, we are unaware of them). Many California landlords have found this book to be entirely sufficient, with its many forms and instructions for completing them and following California's detailed steps. If you want to save yourself several thousands of dollars and you're prepared to do a little work, check out this book. Note that it cannot be used for rental property outside California.