Joint tenancy with the Rights of Survivorship: Upon the death of a joint tenant, his/her interest will pass to the other joint tenants in equal shares.
Tenants by the Entirety: Only applied to married couples. Upon the death of a spouse, his/her interest will pass to the surviving spouse.
Forcible Entry and Detainer Process
For purposes of eviction, a tenant is late paying rent after Seven days from the due date. At that point a Seven Day notice to quit may be served upon the tenant. This is the only way to evict a tenant for not paying rent. Tenants may be evicted for other purposes, such as lease violations, but a different process is required. There are statutory requirements for this notice, but the process is fairly simple, but pitfalls await Landlords around every corner. The Landlord, Attorney, Sheriff, or another person may hand the notice to the tenant to complete service. If the tenant refuses, or the tenant is not found on three different attempts on three different days, the notice may be left at the premises with a copy mailed to the tenant. The Sheriff may also be used to serve this notice if the relationship between the parties is not amicable; the Sheriff will charge a fee for this service, typically being $50-$100. Please take note that some tenants are aware of this process and will avoid being served to prolong the process (I call them “professional tenants”).
Once the Seven Day Notice to Quit is served the tenant has Seven Days to pay the back rent. If the tenant pays the back rent then the process is over and the eviction process has ended. If eviction is still desired, a different process will then need to commence (30 day notice or per lease agreement). If the tenant does not pay the back rent, then on the 9th day a Complaint for Forcible Entry and Detainer may be served upon the tenant. If a 30 Day notice to quit is used the wait is at least one month. Service of the Complaint and Summons is required through the Sheriff’s Department; service cannot be completed by any other person (paperwork can only be dropped off to the Sheriff between 9:00 a.m. and 11:00 a.m. weekdays). As soon as these items are served upon the tenant, a court date is set usually within two weeks. The Sheriff also charges $50 – $100 for this service. A seasoned tenant may attempt to avoid service of the Complaint and Summons requiring the Sheriff to make three attempts to serve on at least three different days at different times. If the Sheriff is not able to serve the tenant an Affidavit will be provided by the Sheriff for your attorney to request Alternative Service from a Judge. This process can take many weeks depending on how evasive the tenant is and how long it takes to get a Judge to sign the Alternative Service request. The Court charges $5.00 for a Summons for each tenant and there is a $70.00 fee to file the Complaint for Forcible Entry and Detainer with the Court.
Once the tenant is served a court date all parties must show up to court on the date and time specified. If the tenant fails to show up for court a Default Judgment will be requested by your attorney. If the tenant does show up, then mediation and a hearing (trial) may take place in an effort to obtain the Judgment.
Once a Judgment for Forcible Entry and Detainer is obtained a Writ of Possession will be requested by your attorney on the 7th day after appearing in Court. The Writ is issued by the court for a fee of $25.00 and your attorney will request the Sheriff to serve this Writ upon the tenant. This process is similar to serving the Complaint and Summons and there will also be a fee for the Sheriff of $50 – $100.
Once the Writ of Possession is served upon the Tenant, the Tenant has 48 hours to vacate the premises. If the Tenant fails to vacate, the Tenant may be removed by law enforcement and arrested for Criminal Trespass. Any belongings left behind should be discussed with your attorney as there is a very specific procedure that must be followed in disposing with the tenant’s property. A letter must also be sent to the Tenant on how the Security Deposit will be allocated or the Landlord risks forfeiting the Security Deposit.
Although this process can be quick, it can also take two to three months for “professional tenants”. Each process must be completed without error in an effort not to void the entire process. Please provide all information up front to your attorney to avoid a needless mistake that may prolong the process. At this point you are probably out of a lot of money and you may have a tenant that you are unlikely to ever recover money from, but getting them out of the property should be your primary concern at this point.
The most common defense to an eviction by a tenant is a Breach of the Warranty of Habitability. If your tenant has ever complained to you about anything needing repair, please provide this information to your attorney immediately as it may affect the entire process. Pine Tree Legal Services will provide a free Attorney for every tenant that desires one and that Attorney will be waiting to represent them when they appear in Court for the eviction.
A Landlord Cannot Do the Following
Willfully cause, directly or indirectly, the interruption or termination of any utility service being supplied to the tenant including, but not limited to, water, heat, light, electricity, gas, telephone, sewerage, elevator or refrigeration, whether or not the utility service is under control of the landlord, except for such temporary interruption as may be necessary while actual repairs are in process or during temporary emergencies.
Willfully seize, hold or otherwise directly or indirectly deny a tenant access to and possession of the tenant’s rented or leased premises, other than through the proper judicial process.
Willfully seize, hold or otherwise directly or indirectly deny a tenant access to and possession of the tenant’s property, other than by the proper judicial process.
Every situation cannot possibly be contained in a one page guide.
Please consult your Attorney and carefully discuss every issue you have as evicting a client is not a “one process fits all undertaking”.