• Rob Whiting

Evictions: The Ultimate Guide for Tenants

Updated: Sep 2


Evictions can be a scary thing, but they don’t have to be the end of the world. If you’re a renter and have received an eviction notice, the good news is that you have rights and there are tactics you can employ to fight back against an eviction that is unlawful.


This guide will walk you through your rights as a tenant, how to respond to an eviction, and what resources are available to you when you receive an eviction notice. We also highlight recent changes to the eviction process specific to the COVID-19 pandemic.


We’ll cover the following topics:


What is an eviction, anyway?

What to expect when you receive an eviction notice

How to determine if your landlord can legally evict you

7 tactics to remedy the situation if you receive an eviction notice

How COVID-19 has impacted the eviction process (updated Sep. 2020)

What resources are available for tenants facing eviction

Conclusion


What is an eviction, anyway?

An eviction is where a landlord requests the tenant on the lease to vacate the premises, typically because of a violation of the lease terms.


An unlawful detainer is where a landlord or a tenant requests a non-tenant (i.e. someone not on the lease) to leave the property. This non-tenant typically had permission to be on the property, but no longer does so. An example would be an ex-boyfriend who moved in with his girlfriend (the tenant) and is not on the lease. The ex-girlfriend (the tenant) wants him to leave, but because he is not part of the lease, she cannot file an eviction. Instead she files an unlawful detainer.


A constructive eviction is different in that it is tenant initiated. In a constructive eviction, a tenant decides to vacate the property unit because it is unlivable and the landlord is not able to resolve the issues right away.


The content in this article focuses primarily on traditional evictions.


What to expect when you receive an eviction notice

A landlord cannot just lock you out or post a note to tell you to move out immediately, even if you have violated your lease or are behind on rent. There are formal procedures the landlord must follow. These are the typical steps of an eviction process.


Step 1: You will receive a Notice of Termination

The terminology differs state to state, but there are generally three types of eviction notices that you as a renter may receive:

  1. Pay Rent or Quit Notices: a landlord will issue this document if you haven’t paid rent. In most states this notice provides 3 or 5 days to pay rent or move out (‘quit’). It will often list out all outstanding payments.

  2. Cure or Quit Notices: a landlord will issue this document if you have violated a term of the lease. In most states this notice provides 10 - 30 days to resolve (‘cure’) the issue or move out. It should list the violation in question.

  3. Unconditional Quit Notices: this is the harshest of all the notices, and a landlord will issue this document if there has been a serious violation of the lease, or a repeated violation of terms (even if not the most serious breaches). For example, serious violations may include significant damage to the property, firearms on the property, drug dealing or other illegal activities. The criteria of when an Unconditional Quit Notice can be used varies by state.

A landlord must provide the eviction notice in writing for it to be a legal eviction notice. This is the case even if you have an oral lease agreement.


Step 2: The landlord will file a Forcible Detainer with the local court

If you do not resolve the issues outlined in the Notice of Termination, the landlord will likely file a Forcible Detainer with the local court. The landlord will be filing two documents with the court: (1) an ‘eviction complaint’ to start the eviction case, and (2) a ‘summons’ to inform you about the legal case.


As a tenant, you should receive the eviction summons from the local sheriff’s office. If a landlord just comes by your apartment to tell you to vacate, this is not proper procedure.


Step 3: You will need to file an ‘answer’ by the deadline

Once you receive the summons, it is critical that you file a response (called an ‘answer’) to the summons to state whether you agree or disagree with the landlord’s eviction notice. If you do not file the answer by the deadline, the landlord can ask for a ‘default judgement’. This means the landlord automatically wins and you do not get a chance to tell your story in court.


Step 4: You will need to appear in court for the eviction hearing

Assuming you file your answer on time and disagree with the eviction, the next step will be a court hearing. If the judge rules in your favor, you will be able to stay in the apartment, subject to conditions. If the landlord wins, you will have a specified number of days to move out.


Step 5: You will have to remove your items, with Sheriff’s escort if needed

If the judge evicts you, you will have a certain number of days to vacate the property. At this point, it’s better to move out on your own. If you do not move out by the date outlined in the court order, the landlord may be legally able to lock you out and charge you for any moving services. If you squat on the property and need to be forcibly removed, law enforcement will escort you.


Step 6: Your next steps after you’re evicted

If you are to lose your housing, there are likely many questions you will be asking. Here are some of the most common ones:

What can I do for housing and is there temporary housing available?

If you are in the middle of the eviction process, it’s

to plan ahead and identify your next apartment in the event the eviction occurs. Look to family or close friends if you have any in the area. Even if it feels embarrassing, you’ll be surprised how supportive those around you can be. Additionally, you can contact local housing agencies and non-profit organizations, many of which provide temporary shelter or assistive services. Check out JustShelter for a directory of local contacts.

How long does an eviction stay on my record?

Evictions typically stay on your rental history report for seven years. Technically the eviction itself is not on your credit report, but if you were evicted before the end of your lease and effectively stopped paying rent, that non-payment of rent is reported as a default on the remaining balance of your lease. They will likely show up within 30 - 60 days of when a decision is handed down by a judge.

How can I explain the eviction to my next landlord?

It’s best to be upfront with your next landlord. Lying or trying to hide the eviction could backfire, as there are publicly-available databases landlords can use. Some general tips on how you can best rent after an eviction:

  • Connect with your prior landlord. Discuss with your previous landlord to see if (1) they’d be willing to remove the eviction from your record (perhaps if you paid outstanding rent payments), and/or (2) be willing to provide a positive recommendation to your next landlord.

  • Gather references. Gather 2-3 references from prior employers or other professional contacts. Friends can also work but may be less compelling.

  • Work with an apartment locator. These are companies that work with landlords and they will know which ones are more likely to overlook an eviction.

  • Find a landlord that doesn’t do background checks. Private owners are less likely to care about prior evictions than professional owned and managed apartment buildings.

  • Identify what rental history looks like. If you end up with a landlord that does background checks, try to find out what renter database or screening tool they use. Contact that company and ask what your profile looks like so you know what you’re walking into.

  • Have an open discussion. Based on those findings on the background check, have an open discussion with your landlord. Landlords are often very reasonable and may be willing to work with you (e.g. they may require a higher security deposit) instead of rejecting you outright.


How to determine if your landlord can legally evict you

A landlord may believe that because they own the apartment, it is within their rights to evict you based on their discretion. However, you as a renter (hopefully) signed a legally-binding lease with the landlord when you moved in, and so you have rights too.


3 situations when a landlord can legally evict a tenant

When you moved in, you hopefully signed a lease which outlined specific terms you as the renter need to abide by. A landlord can only legally evict you if you have broken terms of the lease.


1. You failed to pay rent

Failure to pay rent is the most common reason for an eviction, and paying just a few days late once could be sufficient to warrant an eviction.


2. You violated a term of the lease

Here are the most common reasons for a legal eviction, assuming the lease includes these:

  • Improper conduct by Tenant annoying other tenants

  • Subletting without written permission

  • Having a pet without permission

  • Structural damage to the apartment or common areas

  • Smoking in the apartment

  • Misrepresentation in the lease application

  • Having more tenants in the apartment than approved

  • Failure to comply with any other Term or Rule in the lease

Your lease may also outline ways for you to remedy the situation, so look for that. For example, you may see a section titled “Tenant’s default” that outlines the potential issue and how many days you have to resolve it from the time the landlord gives notice.You are on a month-to-month lease and your landlord gives sufficient notice


3. You are on a month-to-month lease and your landlord gives sufficient notice

In most states, if you have agreed to a month-to-month lease or a tenancy-at-will, a landlord can legally ask you to vacate the property without a specified reason as long as they give you sufficient notice. This is typically a 30-day or 60-day notice period (differs by state), and the landlord will provide you with a formal ‘30-Day Notice to Vacate’ document. Your lease should have more details on the term and the stipulation.


4 situations when a landlord cannot legally evict a tenant

There are four situations when a landlord cannot legally evict you:


1. Retaliatory eviction

Retaliatory evictions occur when a landlord attempts to evict a renter in response to an action or complaint that is within the tenant’s rights. Retaliatory evictions are illegal. Tenant actions that might cause a retaliatory eviction include:

  • A tenant complains about ongoing maintenance issues

  • A tenant complains to the local health department about a safety violation at the property

  • A tenant withholds rent until the safety violation is resolved

  • A tenant organizes other tenants in response to issues or concerns at the property, such as an increase in rent

Also note that if a landlord attempts to evict the tenant within a certain number of months since your complaint, the judge may rule in the tenant’s favor, deeming the eviction to be connected to the tenant’s complaint.


2. Discriminatory eviction

A landlord cannot evict you for discriminatory reasons. There are seven classes of people covered under the Fair Housing Act. These protected classes are: race, sex, color, familial status (e.g. single, have a child under 18, etc.), disability, national origin and religion.


3. Tenant withholding rent until a health or safety issue is fixed

It is not legal for a landlord to evict a tenant for non-payment of rent if the non-payment is due to a health or safety issue at the property that has not been resolved. The renter should be sure to document the complaint to the landlord.


4. Protected tenant

Some states and counties classify certain tenants as ‘protected tenants’. Protected tenants typically include the elderly and disabled, and those who have lived at the property for a certain number of years, often 10 years. These tenants are very hard to evict given their vulnerable status, even for legitimate reasons such as non-payment of rent. Check your local laws to see if you are considered a protected tenant.


Can a landlord evict you without cause if you don’t have a lease?

The short answer is yes. There are three scenarios in which you may not have a lease: (1) you are a tenant-at-will, (2) you are a squatter, (3) you are overstaying your lease.


We will focus on (1) tenant-at-will. If you do not have a lease, you are considered a tenant-at-will. In this situation, the frequency of your rent payments constitutes the length of the lease. For example, monthly rent payments means your ‘lease’ is one month. If your landlord wants to evict you, and you are paying rent on time, in most states the landlord must give you a 30-day Notice to Quit (i.e. notice to leave). Check your lease and local laws to verify.


7 tactics to remedy the situation if you receive an eviction notice

Just because you have received an eviction notice doesn’t mean that you will be evicted. According to the Eviction Lab at Princeton University, every year in the US, 3.6 million eviction cases are filed, but only 1.5 million eviction judgements are made, meaning that only 41% of eviction notices actually lead to eviction. There are several tactics you can employ to maintain your housing, and provide a softer landing if not.


1. Determine if the eviction notice is lawful

Based on the reasons outlined above and the notice you’ve received from the landlord, check to see if the landlord is legally able to evict you. This will give you much more confidence in how to proceed. You can also enlist legal help to make the determination (see point 5 below).


2. Work with your landlord and keep open communication

Many landlords want to work with their tenants so that they don’t have an empty apartment nor have to go through the eviction process which, according to TransUnion, costs landlords $3,500 on average. Depending on your situation, a few points you can discuss with your landlord:

  • Document and sign a payment plan to get back on track with your rent payments

  • Identify the lease violations and ways to address them. For example, if the issue at hand is a pet that shouldn’t be in the unit, agree on a timeline to find your pet a home

  • Negotiate other scenarios, like finding another roommate who could join your unit and help with rent payments or adjusting some of the variable expenses like internet or TV that might be bundled in your rent amount


3. Pay your rent in full, or partial payment if possible

If the issue at hand is non-payment of rent, pay in full as soon as you can. If your landlord will accept a partial payment, depending on the state, this may require that the eviction process is restarted, thus buying you more time.


If you attempt to pay your rent but the landlord refuses, have a witness present and document the event. If that doesn’t work, send the rent by certified mail, and if the landlord refuses the mail, save the return receipt. This evidence will be important in court.


Don’t have enough money at the time? A few ideas for resources:

  • Contact your health insurance company - many offer temporary rental assistance payments

  • Contact your city’s social services agency - many cities also offer short term rental assistance

  • Take advantage of other needs-based services - non-profits may offer needs based support for food and other essentials, and this can free up money for rent


4. Document everything

Keep good notes, ideally electronically, of all interactions with your landlord. Email is one of the best ways to communicate because everything is timestamped, documented and searchable, instead of phone calls, in-person interactions and text messages which are not as easily verifiable. Even if you have phone calls or in-person discussions, be sure to note them down in a journal. If the process proceeds to court, this will help you defend against the landlord’s claims.


5. Talk to a lawyer

If you want external help, many lawyers will offer a free 30-minute consultation, and there are often free legal services available that you can reach out to. See the ‘What resources are available for tenants facing eviction’ below.


6. Appear in court if you are summoned

Many renters skip out on the court hearing, but this is a big mistake. If you do not appear in court, the judge will almost certainly rule in favor of the landlord. Be sure you arrive early, dress professionally, and come organized with your story and documentation.


7. Consider moving out

If your landlord truly does not want you on the property or there is an antagonistic relationship, it may be better to simply move on from the apartment.


How COVID-19 has impacted the eviction process (updated Sep. 2020)

With COVID-19, there has been significant, although temporary, changes to eviction processes and rights you have as a renter. At a federal level, in March the CARES Act banned late fees until July 25 and evictions until August 24 on properties backed by federal mortgage programs Fannie Mae and Freddie Mac or public housing programs.


This ban has now expired and as of August 30 no new eviction moratoriums have been announced. At a state and local level, most eviction moratoriums are ending on or around September 1, 2020, though some localities are extending beyond this. For state-level updates on eviction policies, check out Princeton University’s Eviction Lab. You should search online for your local city or county to see any policy-related news.


During this time, even if you are protected by an eviction ban, you still owe rent. You may also owe late fees, unless you were protected by the CARES Act. If you do not pay rent, once the court does hear your eviction case, you may still get evicted. In most cities, it is up to the discretion if they want to accept late rent payments.


What resources are available for tenants facing eviction

We’ve collected a number of resources that you as a renter can utilize. Do you have any feedback on these or additions we should add? Please comment below!

  • Department of Housing and Urban Development (HUD) - state-by-state overview of your rights as a renter

  • EvictionLab - regularly updated compilation of COVID-19 eviction policies, down to the local level

  • JustShelter - navigator of local resources ranging from legal support to rental assistance to affordable temporary housing

  • Contact your city’s social services department - most cities have a dedicated social services department, part of which is typically dedicated to housing support. Here’s an example for Jacksonville, FL

  • Contact your health insurance company - many health insurance companies, especially Managed Medicaid plans, have a team of ‘housing navigators’ who can help connect you to resources to navigate the eviction process, and even provide short-term rental assistance if needed


Conclusion: as a tenant, you have rights and you have options

If you’ve been served with an eviction notice, it can be intimidating and confusing, especially given the legal differences on even a city-by-city basis. There’s no shame in asking for help - everyone falls on hard times. We hope many of the points mentioned above can be a helpful start to resolving your situation.


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