By Professor P
You've been served an eviction notice, what should you do? The state that you are currently residing in is a major factor. However, there is generally a set of procedures that applies to tenants.
The most important step that a landlord must take during an eviction process is when they serve the tenant the eviction notice. There are many steps the landlord must follow in order to properly evict the tenant. One such step is the landlord's requirement to serve the tenant "properly". It is absolutely imperative for the landlord to serve the tenant properly in order for the eviction notice to be legally effective. In most cases, the landlord must serve the eviction notice in person and the notice must state the reason. However, in place of serving the eviction notice in person, the landlord may also post or mail the notice if he/she can't serve the notice in person. In states such as California, the landlord must follow a strict set of procedures before serving the notice via mail or post. For example, the landlord must first exhaust the possibility of servicing the notice personally. Afterwards, they must try to serve the notice via substitution by giving it to someone either in your workplace or someone of acceptable age at the property of tenancy. After the exhaustion of the previous steps, the landlord must then post and mail the notice.
Assuming that the landlord has already served the notice properly, the tenant has the option to correct the violation, for example, by paying the rent if the eviction is for the nonpayment of rent. Depending on the state, the landlord can not demand for rent greater than the regular rent amount, such as a penalty fee. This would render the notice legally ineffective.
In the case where the tenant chooses not to move out after the eviction notice, the only legal action the landlord can perform at that point is to serve the tenant with court papers. At that point, the tenant needs to prepare for a court appearance. There are a few reasons that the tenant may use to defend their position. They fall mainly under three categories: improper notice, unsafe or unfit housing, and some sort of discrimination. The improper notice defense is of course with reference to how the landlord serves the tenant the eviction notice, which was mentioned above and is specific to each state. The unsafe or unfit housing defense pertains to the inhabitability of the property. Note that this is also known as the "warranty of habitability defense," which covers the fact that as a tenant, you are entitled to a safe and decent living area. Lastly, the tenant may also choose to exercise the defense of discrimination. If the tenant can prove that the landlord is acting with discrimination, which includes eviction based upon, race, color , sex, sexual orientation, physical or mental handicap, or the case of having children, the court will then render the eviction as ineffective. The tenant must, however, be able to render all the landlord's claims as ineffective. For example, the landlord may have two reasons for evicting the tenant. In order for the tenant to possibly win the case, he must, therefore, be able to defend his case for each reason.
If the court rules in favor of the tenant, the landlord will have to file legal proceedings again. However, if the tenant loses, a writ of possession will be given to the landlord and the tenant must then move out within a specified period of time, which varies per state.
Given the fact that legal proceedings can be long and costly, it is to the advantage of both the landlord and the tenant to try to work matters out. In the end, it will save both parties time, hassle, and money.
About the Author: Professor P is an editor at http://www.roomapes.com
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