The Eviction Process FAQ

Q: After the lease is terminated, what can the landlord do if the tenant doesn't move out?

A: The landlord has to take the tenant to eviction court. A tenant cannot be evicted by a landlord; only a court can do that.

Q: How long does the eviction process take?

A: At the expiration of the notice period, the landlord may choose to file a lawsuit alleging forcible entry and unlawful detainer. The court will assign the case for trial as a "summary" or quick proceeding. Assuming proper service of the summons and complaint on the tenant, the court will provide a judgment after a default proceeding or trial. The trial may be scheduled as soon as two weeks after the suit is filed. In some states, the judge can order eviction immediately at the end of the trial.

Usually,  the court allows the tenant time to move out, usually one to four weeks. If the tenant remains after that period, the landlord has to hire the sheriff or marshal to carry out a forcible eviction. This may add several more weeks to the eviction process. Further delays are likely if the tenant files a motion for more time or objects to the court decision.

Thus, depending on how the eviction process goes, one should expect that from the end of the notice period an eviction can take anywhere from five weeks to three months. And that assumes there are no delays.

Q: What happens if the tenant does not show up in court?

A: If the tenant fails to respond properly to the lawsuit or show up in court, the judge will issue a default judgment in favor of the landlord. This is what happens in most eviction suits.

Q: What kind of judgment may the court enter in an eviction case?

A: In the circumstance that the court rules in favor of the landlord, it may require the tenant simply to vacate the premises or to vacate and pay back rent, damages, court costs, and, occasionally, the landlord's attorney's fees.

Q: What can delay the judgment in an eviction?

A: Many things. First, the landlord must hire the sheriff, a licensed process server or an attorney to serve the summons and the complaint on the tenant. Any situation in which an agent is unable to serve the papers properly, the trial cannot go forward on the scheduled date and the landlord must try again. In some jurisdictions the landlord's agent may "nail and mail" the summons and complaint (that is, post the papers on the tenant's front door and then mail copies to the tenant). In some other areas the landlord has to utilize an agent to serve the papers the first time but may "nail and mail" the second time.

Second, the trial may be delayed by procedural matters, such as problems with the landlord's termination notice or problems with the method of service of that notice or of the court summons and complaint. Delays may also be caused by a tenant’s request to certain procedural rights, such as pretrial investigation of the facts or a jury trial.

Third, if the tenant has substantive defenses against the eviction, such as the landlord's violation of the implied warranty of habitability, discrimination, or retaliation a delay in the eviction process may result.

Q: Can the landlord take the tenant's possessions or physically throw the tenant out after the court allows eviction?

A: Absolutely not. Physical eviction from the premises must be carried out by the sheriff or other proper authority. Only the court can evict a tenant, and the purpose of the court proceedings is to prevent the landlord from "self-help" evictions. If the court issues a judgment for unpaid rent, the landlord is required to use the normal debt-collection procedures, which may include partial wage garnishment and attachment of bank accounts.

Q:  Once the lease has been terminated and the tenant has been evicted, does the tenant owe rent?

A: The landlord and the court may terminate the right of the tenant to occupy the premises. However, in many areas the tenant can still be held liable for the payment of rent if the lease provides for it. Typically speaking, a landlord would not sue the same tenant a second time if the reason for the first lawsuit was nonpayment of rent.