When it comes to evictions, hindsight is 20/20. As you learn more about filing an unlawful detainer or look for a new, suitable tenant to fill your vacancy, avoid any other mistakes by diving deeper into the ins and outs of evictions and eviction screening. From eviction laws to learning how to read an eviction report, take a look at our in-depth guide.
Table of Contents
What is an eviction?
How do evictions work?
Evictions without a lease
Evictions and Chapter 7 bankruptcy
How long does an eviction take?
What does an eviction cost?
Why do evictions happen?
Are evictions public records?
Can evictions be expunged/removed?
Are evictions on the credit report?
Are evictions on the criminal report?
Are evictions nationwide?
Are evictions permanent?
Should I accept applicants with prior evictions?
What is an eviction?
Eviction {Noun}
The action of expelling someone from a property.
For rental property owners and managers, evictions are an occupational hazard. An eviction occurs when a rental property owner tries to remove an occupying person(s) from their property. Depending on your state’s local laws and your tenant’s willingness to vacate the property, the process of legally evicting a tenant can be costly and time-consuming.
California has a unique set of eviction laws that are embodied in several statutes but appear most prominently in Code of Civil Procedure § 1159-1179 (a).
The purpose of unlawful detainer proceedings is a timely restoration of possession. “Time periods for pleading [in unlawful detainer actions] are shorter than ordinary civil actions, the matter is set for trial more quickly and entitled to priority on the trial calendar, and expeditious enforcement procedures are available. In contrast to the relatively quick and inexpensive proceedings for evicting tenants, California law does not provide any summary remedy for ejectment.” ( Titus v. Canyon Lake Property Owners Assn. (2004) 118 Cal. App. 4th 906, 914). For this reason, issues extrinsic to the possessory right are generally excluded from unlawful detainer actions, even though they otherwise arise out of the subject matter of the action. ( Green v. Superior Court (1974) 10 Cal.3d 616, 632-634.) This is because “[i]t would obviously be unfair to require the defendant-tenant to defend against ordinary civil actions under the constraints of the summary procedure in unlawful detainer actions. Indeed, the constitutionality of these summary procedures is based on their limitation to the single issue of right to possession and incidental damages.” ( Lynch & Freytag v. Cooper (1990) 218 Cal.App.3d 603, 609.)
In addition to, but only incidentally, the landlord may recover a monetary judgment for the amount of any rent owed with interest. (Code of Civil Procedure Section 1174(a) & (b); Briggs vs. Elec. Memories & Magnetics Corp. (1975) 53 Cal. App. 3rd 900).[CB1]
How Do Evictions Work
Generally, pursuing an eviction (also known as an “unlawful detainer”) follows 4 steps:
1.
The Eviction Notice
Most states require you to provide “notice of eviction”. This is a written document notifying the renters why they’re being evicted, what they can do to avoid the eviction, and the deadline.
2.
Filing the Eviction with the Courts
If your tenants did not remedy the eviction issue or move out on their own volition, then you should file your unlawful detainer claim with your local courthouse.
3.
The Court Hearing
During the hearing, you’ll then present your case and all the supporting documents. This is where you’ll find out if the court sides in your favor.
4.
Additional Fallout
Depending on the situation, after you’re awarded the unlawful detainer, you might have to take additional steps. This can include contacting the Sheriff’s department to escort your tenants off the property, storing forgotten possessions, handling abandoned pets, filing for collections, and more.
It’s imperative that you look up your state eviction laws before you start drafting up your eviction notice. While most states loosely follow the eviction process above, each state (and city) has different laws pertaining to how you can evict a tenant.
For example, in California, laws regarding what your notice for termination should say and how long of a notice should be provided, change depending on if the termination has cause. With cause, according to the Cal. Code of Civ. Proc. § 1161, there are three different notices you can provide: Three-Day Notice to Pay Rent, Three-Day Notice to Cure (correct a violation of the lease), and Three-Day Unconditional Quit Notice (this notice is rare and is typically used when a tenant sublets illegally or creates too many nuisances on the property). Each type of eviction (like the nonpayment of rent, breach of the lease, failure to pay late or rent fees, nuisance violations, or failure to maintain the rental property in a safe and sanitary manner) are all considered “for cause” evictions that require a separate and distinct notice.
Notices for termination without cause are a completely different ball game. “No cause” evictions include:
- a 30-Day Notice to Quit for those tenants who have lived in the rental property for less than one year on a month to month basis
- a 60-Day Notice for those tenants who have resided in the rental property for more than one year on a month to month basis.
As you can see, these specific notices for month-to-month tenancies (see Cal. Code of Civ. Proc. § 1946 and 1946.1) depend on how long the tenant has resided in the property.
Quick Tip!
“No cause” evictions in California have been the subject of much legislation over the past five years and have been banned in some counties. Be sure to contact a law firm, like H. G. Long & Associates, to determine the status of no cause evictions in the county where your property is located.
In contrast, Texas’s eviction notice laws are much simpler. According to Tex. Prop. Code Ann. § 24.005, property owners can only terminate a tenancy if the renter does not pay rent or violates the lease. In this case (a termination with cause), you would need to provide a three-day notice to vacate. The option to fix a lease violation or pay the rent would also be left to your discretion. For terminations without cause, month-to-month tenancies can be evicted with a simple 30-day notice (unlike California’s 30 and 60-day notices).
Beyond state differences, you’ll need to keep your eyes on local laws. Depending on where your rental property is, your city or county could impose additional regulations. Some cities have invoked “just cause” eviction laws (this dictates what legal reasons you can evict a tenant) while others are looking into requiring tenant relocation assistance.
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Evictions Without a Lease
Tenancies without a rental agreement or lease are considered a “tenant at will”. For the most part, these types of tenancies have very few legal protections and are oftentimes legally considered a month-to-month tenancy. As always, look towards your local and state laws before pursing an eviction as (for example) the eviction laws in Florida can be very different to laws in Georgia, and so on.
In California tenancies without a written rental agreement can be terminated for non-payment of rent, causing a nuisance, or based on a 30-or 60 Day Notice of Termination of Tenancy. These are not known as tenancies at will in California. In California a Tenancy at Will is defined as a permissive tenancy where the tenant takes possession of the rental property without an agreement as to payment of rent, and the duration of the tenancy and where the tenant has never paid rent. A 30 Day Notice to Terminate Tenancy-Civil Code § 789 is required to terminate a tenancy at Will.
Evictions and Chapter 7 Bankruptcy
If your tenant has filed for Chapter 7 bankruptcy, you might not be able to evict them. “Automatic stay” prevents rental property owners and property managers from collecting debts from the bankrupt tenants, and is often granted to first-time bankruptcies. This means you can’t contact, bill, sue, or attempt to collect unpaid rent via an unlawful detainer case. There are exceptions to this. For example, automatic stay is limited to 30 days if the tenant has filed for 2 bankruptcies within one year. The court can also place limits, if requested by the property owner.
According to Nolo, automatic stay will not prevent an eviction in two cases:
- You got a judgment for possession before the tenant filed for bankruptcy (if you filed a monetary judgement for unpaid rent – the automatic stay limits could still hold).
- You are evicting the tenant for endangering the property, or for the illegal use of controlled substances.
When it comes to evicting a tenant who has filed for chapter 7 bankruptcy, it’s best to consult a lawyer for further guidance.
How long does an eviction take?
Depending on your state and local laws, an eviction can take anywhere from a few weeks to several months. Ultimately when it comes to evictions, you got to prepare for the worst.
“I advise my eviction client’s that the standard time for an uncontested conviction from filing to lockout is 45 to 60 days. An uncontested eviction is one that proceeds by default judgment. However, a contested eviction, one where the tenant files an answer can take up to three months after filing the lawsuit to lockout out”
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What does an eviction cost?
The cost of an eviction really varies based on what your county’s fees are, your legal fees (if you hire an evictions lawyer), the reason in which you’re filing an unlawful detainer, and the condition of the property post-court. While the cost of an eviction ranges, here’s some potential costs you might want to keep in mind:
- Unpaid/Lost rent
- Legal Fees
- Court costs like the court filing and administrative fees
- Sheriff fees (to hire to execute the Writ of Possession)
- Locksmith cost
- Property repairs
- Cleaning fees
- Storage solution fees (some states require this if the renter leaves their property on the premises)
- Collection service (if you chose to go this route)
Be mindful that there might be future hidden costs. For example, California is unique among the 52 states in that California law allows a tenant to request a jury trial after filing an answer to the lawsuit. This is a common strategy used by most eviction defense lawyers to delay the eviction process which will cost the landlord a substantial amount of money.
Why do evictions happen?
While evictions can happen for a variety of reasons, monetary evictions take the cake. A monetary eviction occurs when a renter is unable to pay the rent owed. Although studies show that the nationwide eviction filing rate has stayed between a 6 – 7.5% range from 2000 – 2016, the affordable housing crisis is still a huge issue that influences a large part of evictions and it affects more renters then you’d think. According to Apartment List’s 2017 Renter Survey, nearly one in five renters recently struggled or was unable to pay their rent.
“In my practice non-payment of rent cases make up more than 70% of the Unlawful Detainer cases filed, 20% are based on a 3-Day Notice to Perform Covenant or Quit; and the remaining 10% are for types of eviction cases”
Of course, while unpaid rent makes the bulk of evictions, an eviction can happen for a variety of reasons. These include:
- A breach of the lease, like adopting a pet on a no-pet property or illegally subletting
- The owner (or their family member) wishes to occupy the unit
- Significant property damage
- Too many city nuisance write-ups
- Illegal activity
- The owner wants to! (remember with month-to-month leases, some states allow no-cause evictions)
Are evictions public records?
An eviction becomes public record when a judgement, and a filing in jurisdictions that allow reporting, is entered by the court, but there are plenty of circumstances in which an eviction record could be expunged (removed from public records) or sealed. Some states will automatically seal an eviction record if your court case was unconditionally denied or if the unlawful detainer action was dismissed.
For example, in California, there is a 60 Day period after the eviction is file where the filing is sealed. Unmasking the case requires a judgment issued by a California Superior Court.
Can evictions be removed/expunged?
Many states allow the renter to file for expungement to remove or seal the eviction from their records. Typically, tenants will need a valid reason (like the unlawful detainer action was not awarded to the property owner) in order for the expungement to be granted.
Are evictions on the credit report?
Strictly speaking, never. While a monetary judgement against a renter who didn’t pay their rent might be picked up by the credit
bureau as a collection account, most evictions won’t appear. The bureaus report
less than 10% of the cases filed and, after the three major credit buraus released their National Consumer Assistance Plan, that number has been significantly reduced even
further. In short, the majority of public eviction records will not be reflected or represented within the applicant’s credit score or credit report.
If you want to see if your rental applicant has any prior evictions, you will have to depend on a tenant screening service that provides
a separate evictions check. This way you can see both monetary and non-monetary evictions… even ones where the tenants paid after being served or who voluntarily vacated (as permitted by state and federal law).
Are evictions on the criminal report?
Sometimes, however, it’s not a common occurrence. Unless the eviction record carried some sort of criminal charge attached with it, the eviction would be filed as a civil record and would not be on a criminal report.
Are evictions nationwide?
Yes and no. Tenant screening companies, like ApplyConnect, who offer nationwide eviction searches on their background reports are able to do so because they have created their own database – drawing from landlord-tenant records from each of major jurisdictions throughout the county, or have access and purchase records from a Consumer Reporting Agency with a nationwide database. That being said, there is no all-encompassing, federal eviction database.
Quick Tip!
ApplyConnect actually has the largest nationwide eviction database with over 36 million eviction records!
Are evictions permanent?
Per the Fair Credit Reporting Act § 605.a, evictions are reported for 7 years. In Oregon, it’s 5 years (Senate Bill 91). If you see an eviction that is dated more than 7 years (or in Oregon’s case, five), do not use that record when considering whether to rent to a prospective tenant! While it might be tempting to dive deeper into a respective renter’s past – it can cost you boatloads of legal fees if you choose to break this law.
Should I accept applicants with prior evictions?
At the end of the day, it’s up to your discretion on whether you wish to accept or deny applicants with evictions. However, be aware that there are reporting restrictions (FCRA Sect. 605) in relation to Adverse Actions for civil suites, collections, and “any other adverse item of information”. Overall, take some time to review your written rental standards and revise your guidelines as you see fit.
While you’re considering your options for evicting a tenant, looking at other ways to screen your applicants for evictions, and considering any rental standard revisions, go a step further and learn how to read an eviction report.
How Costly Have Your Prior Evictions Been?
Let us know in the comments!
