If your tenant has failed to pay rent, the legal mechanism for evicting the tenant is called a “Summary Ejectment.” Summary Ejectments are filed in the small claims division of the county in which your tenant resides (i.e., the county of the property the tenant is leasing). When presenting claims in small claims court, there are a variety of types of relief one can ask for . In your case, the type of relief you will be asking of the Court is for possession of the premises (i.e., evicting the tenant from the premises), as well as an order for the tenant to pay any past due rent.
There are other steps to complete before filing for Summary Ejectment with the Court, however. First, you need to serve an eviction notice to the tenant. When filing for Summary Ejectment for the tenant’s failure to pay rent you will need to provide the tenant with a ten (10) day demand for rent. The notice gives the tenant ten days to vacate the premises or pay the past due rent. If the tenant does not vacate the premises, and does not pay the past due rent within the ten day notice period, you can then proceed with filing for Summary Ejectment.
If, during this period, the tenant offers to pay rent, it is best to only accept full payment. If you accept partial payment of the rent owed you may be waiving the tenant’s lease violation of failure to pay rent if your lease does not have any waiver provisions. If the tenant has not vacated and not paid rent, you will then need to file a Complaint for Summary Ejectment and Summons with the Clerk of Court. The Summons and Complaint will be served by Sheriff via mail or in person within five (5) days of the summons being issued by the clerk. Once the tenant has been served, the tenant can either vacate the premises, appear to court, or do nothing.
At the Court hearing, you will want to bring evidence with you to prove your case to the Magistrate. At minimum, you will want to bring with you the following items:
- A signed copy of your leasing agreement;
- A copy of the ten day notice you sent to the tenant demanding rent; and
- A ledger or any documentation you have that the tenant did not pay rent.
You and the tenant will both get the opportunity to be heard at the hearing. To prove your case to the Magistrate, you need to show the following:
- that there was a landlord tenant relationship (you can use your lease to do this);
- that you provided the ten day notice to the tenant; and
- that the tenant has failed to pay rent.
The tenant will also be able to provide any evidence to defend against the eviction.
If the Magistrate finds you have proved your case and that the tenant has no valid defense, you will receive a “Judgment of Possession” of the premises. The tenant then has ten days to appeal. If no appeal is filed, you will then file a Writ of Possession which the sheriff will execute seven days after the Writ is issued. After the Writ of Possession is served, the tenant then has ten days to vacate and remove all property from the premises.
After the tenant has been evicted, you will want to have the locks changed. You probably will need a locksmith to change the locks, and have the sheriff present. If the tenant has left any property behind you must give them at least seven days’ notice to collect the property before disposing of it.
As you can see, landlord/tenant legal issues can be complicated, and involve several steps inside and outside of the legal system. If you are dealing with a landlord/tenant legal issue and would like legal representation, please feel free to contact Kreger Brodish to schedule a consultation to discuss your case.
