Understanding Evictions What is an Eviction? An eviction happens when a landlord believes that a tenant has seriously violated the lease and wants the tenant to fix the problem or leave the apartment. The process usually begins with a 5-day notice and may eventually end up in small claims court with a judge ordering that the tenant be removed from the apartment. It is important to note that a tenant can only be evicted by a judge. What types of violations are there? The two basic categories of violations in evictions are: Non-payment of rent — Includes failure to pay part or all of the rent or paying rent late. Other violations — Could include making excessive noise, damaging the apartment, having pets in your apartment without permission, or allowing someone to live in your apartment without your landlord's permission, as well as other significant violations of the rental agreement. How does the eviction process begin? The eviction process begins when the landlord gives the tenant a notice. The landlord should try to give the notice to the tenant or someone in the tenant's family over the age of 14. If the landlord has tried several times, the landlord can post a copy of the notice in an obvious place on the rented premises and mail a copy to the tenant's last known address. The landlord can also mail a copy to the tenants last known address by registered or certified mail. However, as long as the tenant acknowledges that they actually received the notice, it doesn't matter what method the landlord uses. What types of notices are there? A notice that your lease will not be renewed or a notice to end a month-to-month tenancy are not eviction notices. There are four types of termination notices: A 5 day notice with the right to cure gives you a chance to fix the problem. If you fix the problem or take reasonable steps to fix the problem within five days after receiving the notice, the landlord cannot take further action. A 14 day notice orders you to move within 14 day seven if you fix the problem. A 5 day notice without a right to cure is given when the police give the landlord a notice that their property is a "drug nuisance" (making or selling drugs on the landlord's property) or "gang nuisance" (any building used as a meeting place of a criminal gang or to facilitate its activities). Before a landlord may use this law, the landlord must receive a written notice from the police that a nuisance exists in the tenants apartment or was caused by that tenant on the landlords property. A tenant may challenge this 5 day notice and the landlord must prove in court that a "drug nuisance" or "gang activity" exists. A 30 day notice with right to cure is served only to tenants with a lease for more than a year. What information must be on the notice? The notice must be in writing and include the date, the lease clause (rule or requirement) that the tenant violated, the type of notice (5 or 14 day), and the right to cure (fix) the problem, if there is one. Can the landlord give either a 5 or 14 day notice? Once you receive a 5 or 14 day notice, you have three options: You can fix the problem and remain in the apartment. If you received a 5-day notice and you take reasonable steps to fix the problem within 5 days then you have the right to remain in the apartment. The landlord does not have a right to remove you from the apartment at this time. If you received a 14-day notice and fix the problem,you will still have to negotiate with the landlord in order to stop the landlord from going to Small Claims Court to evict you. Get any agreement in writing and signed by all parties. Keep a copy of the agreement for yourself. You can move out. However, moving out does not end your responsibility for the rental agreement. You still have to pay rent until someone new moves into the property or the lease ends. You can stay in the apartment. You might wish to stay if you believe the landlord had no reason for giving the notice. Remember, you have a right to a trial and the landlord will need to prove you violated the lease. However, if you stay and are evicted you might be held responsible for double the daily rent for every day after the 5 or 14 day notice expired. This situation rarely happens. The best option is to negotiate with your landlord; any agreement reached should be in writing with copies for both you and your landlord. What happens if I don't move out? The only way a landlord may remove you is by a court order. A landlord may not: Change your locks Remove your possessions Turn off your utilities Throw things out in the street The landlord needs a court order to remove you from the premises. If your landlord tries to evict you illegally, call the police or sheriffs department, Consumer Protection, Legal Services, or a private attorney. The legal method for a landlord to remove a tenant is to file for eviction in small claims court. You will receive a Summons to appear in court. This may be served by the sheriff or a private civil process server. You must appear in court on that day or you will be evicted. The initial hearing in an eviction suit is called a joinder conference. You do not need to bring witnesses to a joinder conference, but be prepared to discuss your case at this time. The purpose of the joinder conference is to find out if there will be a settlement or if there will need to be a trial. If a settlement is not reached, either party can request a trial on a different date. It is important that if you make a payment agreement that you agree to a reasonable payment schedule. If you make an agreement and you do not follow through, you may be evicted automatically when you miss a payment. If the case is not settled at the joinder conference it will proceed to trial. If you tell the small claims clerk that you do not want to hold the joinder conference and the trial on the same date, state law requires that the trial be rescheduled to a later date. At trial, you should be prepared to present all evidence and witnesses. Check with your small claims court clerk to learn the procedure in your county. What happens if the judge evicts me? If you go to trial and lose, the judge may make a written order to remove the tenant called a writ of restitution. After the landlord gives the sheriff the writ, the sheriff will come within 11 days to remove you from the apartment. Usually the sheriff will post a 24-hour notice before removing you from the premises. Only the sheriff has the authority to post a 24-hour notice and remove a tenant. If the sheriff removes you from the apartment you will have to pay the storage costs to retrieve your belongings. You will also have to pay the landlord for moving costs. If you are evicted you may wish to contact the Rental Issues Coordinator (608) 342-1102 and First Call For Help (608) 246-4357 for social service agencies that provide emergency rent and other assistance. Remember, an eviction becomes part of your rental record and is a reason for a landlord not to rent to you. Disclaimer No part of this webpage should be regarded as legal advice or considered a replacement for a landlord's or tenant's responsibility to be familiar with the law. If legal assistance is required, the services of a housing attorney should be sought.