Trial
The eviction lawsuit is set for trial regardless of whether the tenant responds. If the tenant has disputed the landlord's allegations, the judge will hear from both parties during the trial and decide if an eviction is warranted. The judge's decision is the "judgment."
The landlord must show cause as to why the tenant should be evicted. The tenant is allowed to defend the eviction suit. His defenses are the reasons he should not be evicted. For example, one of the tenant's defenses may be that he did, in fact, pay the rent to the landlord if nonpayment is the basis for the eviction.
TIP: The tenant may represent herself at trial. The landlord can only represent himself if he is a private owner of the property. Corporations that own property and seek to evict tenants must be represented by a lawyer at trial.
TIP: The tenant has the right to a jury trial. If your landlord has brought an eviction suit against you, a jury may be sympathetic to your situation. Additionally, the time and expense of a jury trial may force the landlord to settle the case, and you can avoid a trial entirely. On the other hand, a deadbeat tenant who is refusing to pay the rent will probably fare badly in front of a jury.
At trial, can I raise the issue of money owed to me by my landlord for a personal loan?
No. The court only hears evidence relating to who is entitled to possession of the premises. Other matters, including ownership and title to the property, may not be tried at a forcible entry and detainer trial.
Evidence
"Evidence" is the proof each of the parties presents to the court to show the judge why she should rule in the landlord or tenant's favor. Evidence can be testimony from the parties or their witnesses, or written agreements, including the lease agreement, cancelled checks, receipts, correspondence between the parties, including repair demands and photographs.
The landlord presents his evidence first. He will show the court the lease agreement and testify that he has not received a rental payment for however many months the tenant is overdue.
The tenant may present evidence as well. If the tenant has paid the rent, she can show the court a copy of the cancelled checks. If the tenant has a counterclaim, she presents proof of that to the court as well. For example, if the landlord owes her for repair costs, the tenant can show the court her repair receipts. Photographs of the repairs can also be used as evidence.
SIDEBAR: If the tenant does not answer by the deadline, or fails to appear for trial, the landlord gets a "default judgment." A default judgment means the tenant has automatically lost the case. When the landlord appears in court, the judge accepts his evidence (because the tenant did not dispute it in writing by the deadline or by appearing at trial) and will issue an order directing the sheriff to evict the tenant.
Tenant's Appeal of Eviction
The tenant who loses an eviction case always has the right to appeal the court's decision. Some state laws require an appeal to be filed within 5 days of the court's ruling in the landlord's favor. If the deadline is missed, the case cannot be appealed.
TIP: Although judges cannot give legal advice, ask the judge at the time that she rules in the landlord's favor how much time you have to appeal.
Appeals are complicated and there is no room for error. Additionally, appeals are considered by a higher court, and the judge will not be as patient with the tenant who represents herself. If you are considering an appeal, talk to an attorney as soon as possible. The deadline for filing an appeal will be fast approaching and you need immediate legal advice.
What is an appeal bond?
An appeal bond is the amount of money you are required to pay in order to appeal the eviction order against you to a higher court. If you cannot afford the appeal bond, you can file a "pauper's affidavit" stating you do not have the resources to pay the bond, and the judge may waive it.
I am appealing the eviction. Do I have to continue to pay rent?
Yes. However, during the appeal, the rent is paid into the registry of the court rather than to your landlord.
SIDEBAR: If nonpayment of rent was not the reason for eviction, you must continue to pay rent directly to your landlord.
Obtaining and Serving the Eviction Order
After she hears the evidence, the judge decides whether to grant the landlord's request for an order evicting the tenant. If the court issues the order and the tenant is present, the judge informs the tenant in person that he has a set period of time to vacate the premises. Some state laws require only a 24-hour notice. Other laws require a longer time to allow the tenant to vacate.
The landlord won his eviction suit and I have 6 days to vacate. Do I have to notify that court if we have come to an agreement on the amount of past due rent and the landlord has agreed to let me stay in the apartment?
Yes. Your agreement does not change the court judgment evicting you. Unless you notify the court, the landlord can have you evicted at any time in the future without further court proceedings. The landlord must sign a statement that he will not enforce the court's judgment and file it with the court. If he does not file the statement, then you must file it.
CAUTION: If the landlord will not sign an agreement promising to not enforce the judgment, you are in the risky position of being evicted in the future, even if you are paying rent. In this situation, you should vacate the premises even though you have an oral agreement with the landlord.
The eviction order is sometimes termed a "writ of possession" or "writ of ejectment," which gives the landlord the right to have the tenant physically removed and retake possession of the rental property.
The landlord does not personally carry out the writ of possession. Typically, a sheriff's deputy arrives at the premises with the writ, orders the tenant to vacate immediately, and takes his possessions under threat of arrest. The deputy stays until the tenant is completely moved out of the property. The landlord is not involved with this part of the process, as court orders are enforced by law enforcement personnel. He may watch and observe only.
My tenant finally vacated after I won an eviction suit; however, he left behind all his property. What do I do?
Most laws require the landlord to keep the property for a period time. You can leave it in the apartment or store it. Once the required amount of time has passed, you may sell or dispose of the property. For example, if you are required by law to keep the property for 14 days, you cannot dispose of it until 14 days from the time the tenant vacated the apartment has passed. You must store the property or leave it in the apartment.
The judge ruled in my favor and I can evict my tenant. Do I have to let her in to retrieve her property after the trial?
Yes. The tenant has a right to take her belongings with her when she is evicted or before the order is served on her.
TIP: The tenant still has the right to enter the apartment after she has lost at trial and before she is served with the writ of possession.
I know the sheriff is trying to serve me with an eviction order. Can I stay in the apartment if I continue to avoid him?
No. Laws permit the law enforcement officer that is attempting to serve an individual to post the eviction order in a conspicuous place or mail it if she cannot serve you personally. After the order has been posted or mailed, you must vacate or risk being removed bodily by the sheriff.
The sheriff served me with an eviction order and I attempted to pay my landlord the past rent I owe. Can she refuse to accept the rent?
Yes. Your chance to pay the past-due rent ended once the landlord obtained an eviction order. She is under no obligation to accept the rent, and the eviction order continues in full force.
I paid my past-due rent to my landlord after I was served with an eviction order. How do I know I still will not be evicted?
You can still be evicted as long as the eviction order is in effect. Your payment to the landlord does not extinguish the judge's order.
TIP: To make certain you will not be evicted, you must get a written agreement from the landlord stating she will not evict you based on the current order, and file the agreement with the court.
I have been served with an eviction order, but it is snowing outside. Can I be evicted in bad weather?
Unfortunately, you can. Despite rain, snow or cold weather, you have to move out by the date specified in the eviction order.