The Landlord’s Guide to Basic Eviction Procedure & Flow
This blog attempts to summarize the basic eviction process and steps. Nothing in this blog should be used in place of actual legal advice. Please contact an attorney if you need to file for an eviction.
WHAT IS AN EVICTION?
An eviction is called an “unlawful detainer” from the legal side of things. It is specifically when you have a landlord/tenant relationship and you use the lease that defines that landlord/tenant relationship to remove the rights of an individual, take their possession back, and go after them for damages or back pay in rent. All of this happens in the district court.
Sometimes you’ll have situations like in a foreclosure where it’s not a landlord/tenant relationship that’s been terminated. Maybe you have a squatter and no relationship ever existed. You can’t evict those people because there is no landlord/tenant relationship, so those will generally be ejectments, which is where you have to remove someone and their possessions from a property they’re holding illegally. Ejectments happen through circuit court and you can also go after them for taking illegal possession of the property and any damages the property has incurred.
The key reason we have legal processes for these things is that we don’t want to incentivize landlords into being violent with their tenants or people who are on their property. The courts prefer to establish who has the right to the property and then have the sheriff come out to help you take possession back.
COVID & THE EVICTION MORATORIUMS
We all know the COVID-19 pandemic started back in January 2020, which feels like a lifetime ago. Due to many people losing their jobs because of the pandemic and likely being unable to pay rent, two moratoriums were put in place back in 2020 to prevent a massive wave of people losing their homes.
The Cares Act went into place on March 27, 2020, and started the eviction moratorium. This moratorium lasted until August, and landlords were finally allowed to start the eviction process again on August 23, 2020.
On September 4, 2020, the CDC instated the Public Health Services Act (Read the order HERE) due to high infection rates and cited a public safety issue. The reasoning behind this was that if people were evicted they’d likely have to live with family or friends, which would result in a high number of people living in one space and a higher likelihood of spreading the virus. The PHSA banned any evictions based on a failure to pay rent, and it has been extended four times through July 31, 2021.
The CDC’s moratorium is a temporary eviction moratorium intended to prevent further spread of COVID-19, and only prevents tenants from being evicted due to a failure to pay rent. It does not prevent evictions resulting from tenants performing illegal activities, causing damages to the property, or any other eviction-warranted activities. Tenants don’t automatically qualify for this exemption; in order to qualify, the tenant has to present a declaration to their landlord saying they meet the requirements to be a covered person, and they’ll also have to bring that declaration to court and show that it had previously been presented to the landlord. Tenants are liable for perjury and additional criminal penalties if they lie on these statements, and a landlord has the ability to challenge this statement and show evidence that the tenant has lied on their statement if they believe that to be the case.
The Alabama Association of Realtors met with the court on landlords’ behalf to challenge this moratorium earlier in 2021. The AAR argued that the CDC had gone beyond their statutory threshold of power and that tenants not paying rent to landlords since March 2020 had resulted in over a year of unpaid rent and a massive financial burden on property owners who still had to pay their mortgages during that time period. The court agreed with them, but they put a stay on the order because they wanted the government to have a chance to appeal the decision and they didn’t want to interrupt government process. The government did appeal it at the U.S. Court of Appeals in the District of Columbia, which also decided to keep a stay on the order. This is when the Supreme Court got involved (Read the Supreme Court’s decision HERE) with the hope of having them overturn the stay and enforce the District Court ruling that the CDC doesn’t have the authority to keep this moratorium in place. Though the Supreme Court agreed with the ruling, they also agreed to leave the stay in place since it was set to expire on July 31, 2021. They did, however, order that the CDC could not extend the moratorium any further without congressional approval.
Unlawful Detainer Process
An unlawful detainer is what you actually have when performing an eviction. The following steps are taken to pursue an eviction:
- Check lease provisions (7 or 14 days)
If you are a manager of property, don’t take your lease for granted. Review those provisions, especially your default provisions. A few years ago, the legislature decided to revise the requirements for the minimum amount of time required to evict someone. The standard used to be 14 days, but it is now 7 days for everything. If your lease still allows a 14-day timeframe for failure to pay rent, it needs to be updated to 7 days because we will always fall back on the lease to see what everyone agreed to.
- Notice of Termination
The process for notice of termination can be seen in the flow chart below. The first step in the eviction process is always to give a notice of termination. This is not a notice of failure to pay rent; this is a notice that states the tenant was given the agreed upon amount of time to pay rent and, since it wasn’t paid, the landlord is terminating the lease. Reinstatement of the lease typically would require a payment of all owed funds within a period of 7 days. Accepting any money, including only a partial payment, automatically accepts the reinstatement of the lease. You only have to allow this twice a year; after the third failure to pay rent, you no longer have to give a tenant the option to pay all owed rent and can simply provide them with a notice of termination without the ability to reinstate the lease. For the process following a full payment, a partial payment, or no payment, see the flow chart.
- File Unlawful Detainer
This is the step where the tenant is served with papers. Getting possession back is, in my opinion, the most important part of the process. Once you get possession back for the owner, there’s a whole line of things that need to happen next including fixing the property to ensure you can turn it over to the next tenant. The goal is to mitigate the owner’s damages, and if we try to go after the tenant for any money or unpaid rent during this time period, this can delay how quickly the owner can have access to the property. Some tenants will make it difficult to serve them with papers in these circumstances, which prolongs the process, but if you’re only going after possession then all you have to do is post the notice on their front door, which means the tenant can be served within 24 hours. By initially going after possession only, we’re not saying we will never go after the money, we’re just saying that our first priority is possession. Once we have possession back we can total our damages and owed rent payments and go back to small claims court with the lease to show what amount is still owed.
- Answer from Defendant
Once served, the tenant has a 7-day period in which to answer. If they do answer, no matter what the answer is, the landlord will have to go to court. The best case scenario for a landlord or property manager is if the tenant doesn’t answer; that allows you to file for default. You will then submit all your documents (the lease, the original notice of termination, and notice that the tenant was served with papers) to the court and state that the tenant didn’t respond. The court will review these documents and usually issue a default judgement.
- Notice of Default / Court
Once there is a default judgement, the tenant has 7 days to leave the property. If they refuse to leave within 7 days, the next step is to file a writ of possession.
- Writ of Possession with Sheriff
If the tenant doesn’t leave, the landlord will have to arrange for the sheriff to be present at the property while the landlord removes the tenant’s belongings. The sheriff will not actually do anything other than monitor the process to ensure nothing happens; it’s your job to have people on standby to remove the possessions from the property as the tenant likely won’t be there to do it themselves.
THE COST OF EVICTION
There are two ways to look at the cost of eviction: you have the general cost of the eviction itself, but the most significant part is the cost to the owner of the property. They’ve already lost rent leading up to the eviction, and the eviction can take anywhere from 1-3 months depending on whether we’re serving with personal service, whether the court is backed up and we can get on the docket quickly, whether you accept money at any point and have to restart the process, etc. Even once you get the eviction you have to wait for the sheriff to come out and do the writ of possession if the tenant refuses to leave, which can extend the process even longer. This is a one- to three-month period where you have to pay your mortgage but cannot collect rent, and is also a period where damages can be caused to the property. These are all things to think about and take into account when considering how to move forward with an eviction.
Below are our office’s general fees and typical court fees when handling an eviction:
By: Geoffrey K. Middleton
Attorney at Law
Written in July 2021
If you need to pursue an eviction or have any questions about the eviction process, please feel free to call our office at 256-533-5252 to consult with an attorney.