Eviction

Last updated
Erik Henningsen's painting Eviction held by the National Gallery of Denmark.1892 Sat ud (Henningsen).jpg
Erik Henningsen's painting Eviction held by the National Gallery of Denmark.1892
RIC and Hussars at an eviction-Ireland 1888 Irish Eviction.jpg
RIC and Hussars at an eviction-Ireland 1888
Two men with children, being evicted, stand with their possessions on the sidewalk, circa 1910, on the Lower East Side of New York City. East Side Eviction.jpg
Two men with children, being evicted, stand with their possessions on the sidewalk, circa 1910, on the Lower East Side of New York City.

Eviction is the removal of a tenant from rental property by the landlord. In some jurisdictions it may also involve the removal of persons from premises that were foreclosed by a mortgagee (often, the prior owners who defaulted on a mortgage).

Contents

Depending on the laws of the jurisdiction, eviction may also be known as unlawful detainer, summary possession, summary dispossess, summary process, forcible detainer, ejectment , and repossession , among other terms. Nevertheless, the term eviction is the most commonly used in communications between the landlord and tenant. Depending on the jurisdiction involved, before a tenant can be evicted, a landlord must win an eviction lawsuit or prevail in another step in the legal process. It should be borne in mind that eviction, as with ejectment and certain other related terms, has precise meanings only in certain historical contexts (e.g., under the English common law of past centuries), or with respect to specific jurisdictions. In present-day practice and procedure, there has come to be a wide variation in the content of these terms from jurisdiction to jurisdiction.[ citation needed ]

The legal aspects, procedures, and provisions for eviction, by whatever name, vary even between countries or states with similar legal structures.

The eviction process

Flow Diagram of the Eviction Process in British Columbia, Canada Eviction process bc canada.JPG
Flow Diagram of the Eviction Process in British Columbia, Canada

Most jurisdictions do not permit the landlord to evict a tenant without first taking legal action to do so (commonly referred to as a "self-help" eviction; such actions include changing locks, removing items from the premises, or terminating utility services). Such evictions are generally illegal at any time during the process (including after a landlord wins an eviction suit); a tenant facing such measures may sue the landlord. However, self-help evictions may be permitted in some jurisdictions when commercial tenants are involved, as opposed to residential tenants. [1] [2]

Notice

Prior to filing a suit in court for eviction, generally the landlord must provide written notice to the tenant (commonly called a notice to quit or notice to vacate). The residential and commercial ordinances created jurisdictions preventing landlords from taking any action that may force a tenant out of their premises. These actions include, but are not limited to, force and threats, removing essential services, demolishing the property, or interfering with entrance locks. [3] [4]

Lawsuit and trial

If the tenant remains in possession of the property after the notice to vacate has expired, the landlord can then serve the tenant with a lawsuit.

Depending on the jurisdiction, the tenant may be required to submit a written response by a specified date, after which time another date is set for the trial. Other jurisdictions may simply require the tenant to appear in court on a specified date. Eviction cases are often expedited since the issue is time-sensitive (the landlord loses rental income while the tenant remains in possession). A jury trial may be requested by either party, however until the late 2000s that was very uncommon. [5]

Many of the defendants in eviction case do not show up for court. In many major cities, including Milwaukee, as many as 70% of defendants are no-shows. [6] In the courts in some urban areas only 10% of defendants showed up. [7]

Removal from the property

As mentioned above, most jurisdictions do not allow a landlord to evict a tenant without legal action being taken first, even if the landlord is successful in court.

Instead, the landlord would have to obtain a writ of possession from the court and present it to the appropriate law enforcement officer. The officer then posts a notice for the tenant on the property that the officer will remove the tenant and any other people on the property, though some jurisdictions will not enforce the writ if, on that day, inclement weather is taking place. [8]

With the removal of the tenant also comes the removal of his personal belongings. If the tenant leaves behind anything of value, there is a custom (but no law in some jurisdictions) for the landlord to hold onto his left-behind belongings for 30 days. After these 30 days the landlord is able to sell the left-behind property, usually in an auction, to satisfy any over due rent arrears. [9]

No-fault evictions

As gentrification and the re-population of urban centers by wealthier residents takes place, no-fault evictions are used as a tool to displace tenants in cities with rent control. In California, for example, the Ellis Act allows eviction of rent-controlled tenants if the landlord intends to no longer rent any portion of an apartment building (i.e., landlords cannot be compelled to rent). The Ellis Act has been applied to rentals in San Francisco, [10] [11] Santa Monica and Los Angeles.[ citation needed ]

Just-cause evictions

Some areas have "just cause eviction" laws, which prevents evictions for reasons other than an approved list. For example, the law in Seattle, Washington requires a court order (and in some cases relocation assistance) and allows evictions for: [12]

Massachusetts law allows landlords to evict leased tenants only if one of three conditions are met:[ citation needed ]

Real estate mobbing

Real estate mobbing, also known as property mobbing, is the use of mobbing techniques to constructively or forcibly evict a legal resident or owner from his or her dwelling. Real estate mobbing is a technique used by real estate speculators and the sometimes euphemistically named "tenant relocators" to move residents from dwellings or off of lots that developers and speculators want. The United Nations recognized real estate mobbing as a worldwide cause of forced eviction. [13] Amnesty International deems real estate mobbing to be a violation of human rights. [14] Real estate mobbing is acknowledged as a problem in Europe [15] and particularly in Spain [16] . It is associated with real estate speculation and rapid gentrification.

Countries

United States

In the United States of America, rules for evictions and the eviction process are ruled by each state, local county, and city rules.

Australia

If the tenant is on a fixed term tenancy and their lease is coming to an end, a landlord will be required to give them a valid notice to vacate. The period of this notice varies from state to state. If the tenant will not cooperate with the parameters of an eviction notice, application is made to the Tenancy Tribunal for possession of the property.

A landlord cannot legally evict a tenant without obtaining a Possession Order and a Warrant of Possession. A Warrant of Possession directs the police to evict a tenant from the property. The police then contact the agent to arrange a time to go to the property, see the tenants off the premises, change the locks and formally take possession. The eviction must always be carried out by the police; the landlord cannot evict tenants themselves. Taking the law into own hands and failing to act according to the relevant legislation in jurisdiction will carry penalties for a landlord. [17]

On March 29th Prime Minister Scott Morrison revealed that state and territories governments will be moving to put a moratorium on evictions of persons as a result of financial distress, if they are unable to meet their commitments.The government said these measures were set to last for at least six months. [18]

Impacts on those being evicted

There are sometimes communication problems for when the actual eviction date is decided upon, leaving some evictees thoroughly under prepared with nothing packed when the sheriff comes. [19] This can lead to a Skinner box like experience as evictees sometime try “riding" the eviction out. [19] (This is sometimes caused by denial.) [19]

Evictees [20] experience higher rates of: depression, anxiety, high blood pressure, ptsd, and even suicide. [21] [22] [23] The process of eviction can take a long time (potentially months) and this can leave the evictee in a heightened state of stress, which makes them more susceptible to stress illnesses. [19] [21] Even after years have passed, studies show that evictees show they are less happy, optimistic and energetic than those who haven't been evicted. [24]

Being evicted can increase rates of job loss. [19] In fact, someone is 15% more likely to be laid off after experiencing eviction. [25] This can lead to a cycle where the eviction makes it difficult to work but not working can lead to eviction.

Evictees often end up moving into poorer quality housing, like overcrowded homes. [22] [19] For example, a study that looked at Milwaukee, Wisconsin found that renters who had been involuntarily moved from a prior residence were 25% more likely to experience long-term housing problems than their peers who had only moved voluntarily. [26]

See also

Related Research Articles

Renting Agreement where a payment is made for the temporary use of a good, service or property owned by another

Renting, also known as hiring or letting, is an agreement where a payment is made for the temporary use of a good, service or property owned by another. A gross lease is when the tenant pays a flat rental amount and the landlord pays for all property charges regularly incurred by the ownership. An example of renting is equipment rental. Renting can be an example of the sharing economy.

Landlord Owner of a rented building, land or real estate

A landlord is the owner of a house, apartment, condominium, land, or real estate which is rented or leased to an individual or business, who is called a tenant. When a juristic person is in this position, the term landlord is used. Other terms include lessor and owner. The term landlady may be used for female owners, and lessor may be used regardless of gender. The manager of a pub in the United Kingdom, strictly speaking a licensed victualler, is referred to as the landlord/lady.

Lease business contract between two parties, the lessor (owner) and lessee (user), for use of property

A lease is a contractual arrangement calling for the lessee (user) to pay the lessor (owner) for use of an asset. Property, buildings and vehicles are common assets that are leased. Industrial or business equipment is also leased.

A leasehold estate is an ownership of a temporary right to hold land or property in which a lessee or a tenant holds rights of real property by some form of title from a lessor or landlord. Although a tenant does hold rights to real property, a leasehold estate is typically considered personal property.

A rental agreement is a contract of rental, usually written, between the owner of a property and a renter who desires to have temporary possession of the property; it is distinguished from a lease, which is more typically for a fixed term. As a minimum, the agreement identifies the parties, the property, the term of the rental, and the amount of rent for the term. The owner of the property may be referred to as the lessor and the renter as the lessee.

Rent control in Ontario refers to a system of rent regulation in Ontario, Canada which limits the amount by which the rent paid by tenants for rental accommodation can increase.

A leasehold valuation tribunal (LVT) was a statutory tribunal in England which determined various types of landlord and tenant dispute involving residential property in the private sector. An LVT consisted of a panel of three; one with a background in property law ; one with a background in property valuation generally a qualified surveyor; and a layman, although some decisions of an LVT were decided by a single member. LVTs were non-departmental public bodies.

Landlord harassment is the willing creation, by a landlord or his agents, of conditions that are uncomfortable for one or more tenants in order to induce willing abandonment of a rental contract. Such a strategy is often sought because it avoids costly legal expenses and potential problems with eviction. This kind of activity is common in regions where rent control laws exist, but which do not allow the direct extension of rent-controlled prices from one tenancy to the subsequent tenancy, thus allowing landlords to set higher prices. Landlord harassment carries specific legal penalties in some jurisdictions, but enforcement can be very difficult or even impossible in many circumstances. However, when a crime is committed in the process and motives similar to those described above are subsequently proven in court, then those motives may be considered an aggravating factor in many jurisdictions, thus subjecting the offender(s) to a stiffer sentence.

Assured tenancy

An assured tenancy is a legal category of residential tenancy to an individual in English land law. Statute affords a tenant under an assured tenancy a degree of security of tenure. A tenant under an assured tenancy may not be evicted without a reasonable ground in the Housing Act 1988 and, where periodic changes in rent are potentially subject to a challenge before a rent assessment committee.

Rent control in New York is a means of limiting the amount of rent charged on dwellings. Rent control and rent stabilization are two programs used in parts of New York state. In addition to controlling rent, the system also prescribes rights and obligations for tenants and landlords.

Landlord and Tenant Act 1985 United Kingdom legislation

The Landlord and Tenant Act 1985 is a UK Act of Parliament on English land law. It sets bare minimum standards in tenants' rights against their landlords.

Landlord–tenant law

Landlord–tenant law is a part of the common law that details the rights and duties of landlords and tenants. It includes elements of both real property law and contract law.

The Ellis Act is a 1985 California state law that allows landlords to evict residential tenants to "go out of the rental business" in spite of desires by local governments to compel them to continue providing rental housing.

In property law, the American rule of possession states that a landlord is obligated only to deliver legal possession, but not actual possession, of a leased premises to a tenant. Thus, if a tenant arrives at a leased premises only to discover that it is still inhabited by a previous tenant who is holding over, or by squatters, it is the tenant who has standing to sue for eviction and/or damages, and not the landlord. The tenant may not cancel the lease or refuse to pay rent due to the landlord for the time that the tenant is out of actual possession of the lease. The American rule survives in only a minority of jurisdictions.

In England and Wales, a section 21 notice, also known as a section 21 notice of possession or a section 21 eviction, is the notice which a landlord must give to their tenant to begin the process to take possession of a property let on an assured shorthold tenancy without providing a reason for wishing to take possession. The expiry of a section 21 notice does not bring a tenancy to its end. The tenancy would only be ended by a landlord obtaining an order for possession from a court, and then having that order executed by a County Court bailiff or High Court enforcement officer. Such an order for possession may not be made to take effect earlier than six months from the beginning of the first tenancy unless the tenancy is a demoted assured shorthold tenancy. If the court is satisfied that a landlord is entitled to possession, it must make an order for possession, on a date no later than 14 days after the making of the order unless exceptional hardship would be caused to the tenant in which case possession may be postponed to a date no later than six weeks after the making of the order. The court has no power to grant any adjournment or stay of execution from enforcement unless the tenant has a disability discrimination, public law or human rights defence, or the case is pending an appeal.

Rent control in Scotland is based upon the statutory codes relating to private sector residential tenancies. Although not strictly within the private sector, tenancies granted by housing associations, etc., are dealt with as far as is appropriate in this context. Controlling prices, along with security of tenure and oversight by an independent regulator or the courts, is a part of rent regulation.

The Landlord and Tenant Board is an adjudicative tribunal operated by the government of Ontario that provides dispute resolution of landlord and tenant matters under the Residential Tenancies Act, 2006. It is one of the eight social justice tribunals in Ontario.

The Costa–Hawkins Rental Housing Act ("Costa–Hawkins") is a California state law, enacted in 1995, which places limits on municipal rent control ordinances. Costa–Hawkins preempts the field in two major ways. First, it prohibits cities from establishing rent control over certain kinds of residential units, e.g., single-family dwellings and condominiums, and newly constructed apartment units; these are deemed exempt. Second, it prohibits "vacancy control", also called "strict" rent control.

Arizona Tenants Advocates

Arizona Tenants Advocates is a non-profit renters' union and tenants' rights organization located in Tempe, Arizona. It was founded in 2001 by Kenneth A. Volk, a prominent Arizona tenants' rights advocate.

Eviction in the United States

The procedure and rate of eviction in the United States varies by locality. Landlord-initiated expulsion of tenants is not officially tracked or monitored by the Federal government, and has historically not been subject to comprehensive analysis. The 2016 publication of the book Evicted: Poverty and Profit in the American City by Matthew Desmond raised awareness of the issue. A database created by Desmond found that landlords had been granted eviction notices for one in 50 renter households in analyzed regions. This rate only counts evictions that engage the legal process, as many evictions are informally conducted between landlords and renters, it likely undercounts actual evictions.

References

  1. "The Evolving Use of License Agreements in Real Estate-Related Transactions" (PDF). Retrieved 2019-10-16.
  2. January 2008. "Using a License Agreement Instead of a Lease". LawJournalNewsletters.com. Retrieved 2019-10-16.
  3. "HPD - Tenants' Rights - Harassment". www1.nyc.gov. Retrieved 2019-10-16.
  4. Bailey, Adam Leitman; Law, ContributorAttorney at (2016-10-25). "Commercial Tenant Harassment in New York City--Questionable Medicine". HuffPost. Retrieved 2019-10-16.
  5. Aron, Hillel (2014-12-10). "How "Superman of Renters" Daniel Bramzon Revolutionized L.A.'s Eviction-Defense Industry". L.A. Weekly . Retrieved 2016-10-07.
  6. Desmond, Matthew, Evicted : poverty and profit in the American city, Aiello, Scott, ISBN   978-0-14-752679-3, OCLC   942737584
  7. Larson, Erik (2006). "Case Characteristics and Defendant Tenant Default in a Housing Court". Journal of Empirical Legal Studies. 3 (1): 121–144. doi:10.1111/j.1740-1461.2006.00065.x. ISSN   1740-1461.
  8. "Eviction". Texas Tenant Advisor. Austin, Texas: Texas Low Income Housing Information Service. Retrieved 2019-02-27. If it is raining, sleeting, or snowing you cannot be removed.
  9. "Tenants Belongings After Eviction: What Are Your Responsibilities?". RentPrep. 2018-08-11. Retrieved 2019-10-16.
  10. "Ellis Act Evictions, San Francisco". Anti-Eviction Mapping Project. San Francisco, California. Retrieved 2019-02-27.
  11. "2015 Promises to Be a Battleground Year for Ellis Act Evictions". The Bold Italic . A Medium Corporation. 22 January 2015. Retrieved 4 April 2018.
  12. "Seattle Municipal Code, section 22.206.160 - Duties of owners". Municipal Code Corporation . Retrieved 2019-02-27.
  13. United Nations Human Rights, Forced Evictions, http://www.ohchr.org/Documents/Publications/FS25.Rev.1.pdf.
  14. "Our Work". Amnesty International USA. Retrieved 2019-08-06.
  15. Judt, Tony (2019-04-05), "The Rediscovery of Central Europe", Eastern Europe ... Central Europe ... Europe, Routledge, pp. 23–58, ISBN   978-0-429-03386-5 , retrieved 2020-04-14
  16. "Spain". dx.doi.org. 2012-06-22. Retrieved 2020-04-14.
  17. "Evictions". findlaw.com.au. Retrieved 2020-05-11.
  18. "Prime Minister bans evictions for 6 months". au.finance.yahoo.com. 29 March 2020. Retrieved 2020-05-11.
  19. 1 2 3 4 5 6 Singal, Jesse. "What Happens to People Who Get Evicted Over and Over and Over". the cut. Retrieved 10 February 2020.
  20. "evictee". merriam-webster. Retrieved 14 February 2020.
  21. 1 2 "Study warns of enormous impact of evictions on mental health". medicalxpress. Retrieved 10 February 2020.
  22. 1 2 Bovell-ammo, Allison; Sandel, Megan. "The Hidden Health Crisis of Eviction". Boston University school of public health. Retrieved 10 February 2020.
  23. Serby, Michael J.; Brody, David; Amin, Shetal; Yanowitch, Philip (2006-02-01). "Eviction as a Risk Factor for Suicide". Psychiatric Services. 57 (2): 273–b. doi:10.1176/appi.ps.57.2.273-b. ISSN   1075-2730. PMID   16452711.
  24. Desmond, Matthew; Kimbro, Rachel Tolbert (September 2015). "Eviction's Fallout: Housing, Hardship, and Health". Social Forces. 94 (1): 295–324. doi:10.1093/sf/sov044. ISSN   0037-7732.
  25. Desmond, Matthew; Gershenson, Carl (2016-02-01). "Housing and Employment Insecurity among the Working Poor". Social Problems. 63 (1): 46–67. doi:10.1093/socpro/spv025. ISSN   0037-7791.
  26. Desmond, Matthew; Gershenson, Carl; Kiviat, Barbara (2015). "Forced Relocation and Residential Instability among Urban Renters". Social Service Review. 89 (2): 227–262. doi:10.1086/681091. ISSN   0037-7961.