Life of an Eviction Action

A Civil Lawsuit
Any claims involving an eviction action are considered civil lawsuits. A civil lawsuit is any case that is not a criminal case. If you want a judge to issue an order, you can file a civil suit asking for an injunction. An injunction comes into play when you want the court to order someone to do something or you want the court to order someone to refrain from doing something. You can also file a lawsuit seeking money to compensate you for harm that you have suffered. If your case involves less than $7,000, you can file a small claims case. A small claims case is also a civil lawsuit. If your case involves a lot of money or is more complex, you will probably need the help of a lawyer to file a civil lawsuit in either the superior, housing or District Court.

The Summary Process
In order to remove an undesirable tenant, the landlord must follow the proper judicial process. Beginning with serving upon the tenant a Notice to Quit. Depending on the reason for eviction, a landlord must serve upon the tenant either a 14-day or 30-day notice to quit. Next comes the actual eviction or what is legally referred to as the Summary Process. The Summary Process begins when a landlord files what’s called a summons and complaint in court. During the eviction process the tenant has the right to raise both counterclaims and defenses to the eviction.

Notice to Quit
The purpose of the notice to quit is to terminate the tenancy, this must be done before a landlord files his/her Summons and Complaint with the court. In the case where the landlord is evicting the tenant for nonpayment of rent, a 14-day notice to quit must be given. This allows the tenant 14 days for the tenant to pay the unpaid rent before the landlord initiates an eviction action with the court. The tenant may avoid the eviction process by paying the rent within 10 days of receiving the notice to quit. In the case where the landlord is terminating the tenancy for any other reason other than non-payment of rent, the tenant must receive 30 days’ notice or notice equal to one rental period, whichever is longer.

Summary process and Complaint
Once the notice to quit has been received by the tenant and the time period contained within has expired, the landlord must serve the tenant with the summons and complaint. Between 7 and 30 days after the tenant has been served with the summons and complaint, the landlord can then file the complaint with the court. The complaint must be filed on a Monday which is commonly referred to as the entry date. The hearing/trial date is the second Thursday following the entry date.

Some common defenses are:

  1. Failure to properly terminate the tenancy;
  2. Bad conditions within the premises;
  3. The landlord is retaliating against the tenant;
  4. Discrimination, which includes the failure to make a reasonable accommodation to allow disabled person to remain in the premises despite his/her disability.

There are 4 important dates to keep in mind when you begin an eviction case. If you don’t follow these dates, your case could be dismissed:

  1. Service date
  2. Entry date
  3. Answer date
  4. Trial date

1. Service date
The service date is the day when you can serve the tenant with the summons and complaint. The service date can happen, at the earliest, on the day after the tenancy has been terminated.

2. Entry date
The entry date is the day when you will file with the court. It happens after the tenant is served with the summons and complaint.
You must file the following with the court on or before the entry date stated in the summons and complaint:

  • The Notice to Quit
  • Summons and Complaint
  • Return of Service

The entry date must be between 7 and 30 days after the service date. Entry dates must be on a Monday, unless Monday is a holiday, then it may be on that following Tuesday.

3. The Answer Date
The answer date is the day when the tenant’s written answer must be filed if they have defenses to your legal claims that they want the court to consider. Answers, counterclaims, discovery requests, and pretrial motions can be served and filed anytime on or before the first Monday after the entry date stated in the summons and complaint.

 

Discovery

Either party may make a request for discovery. The request for discovery is due no later than the first Monday after the entry date, the same date the answer from the tenant is due. Once the discovery requests are properly filed and served, the hearing/trial date automatically gets postponed for two weeks. The party serving the discovery must remind the opposing party of the change in hearing date.

Mediation

If both the landlord and tenant are in agreement, they may participate in mediation services which are available in Housing Courts throughout The Commonwealth. Mediation is a highly favorable option in the eyes of the Housing and district courts alike.

The Trial Date

The trial is the day when the landlord and tenant come to court. If the tenant hasn’t requested a jury trial in their answer, there may be a bench trial in front of a judge that day and the case will be resolved. If either party requests discovery, the trial date will be automatically postponed for 2 weeks. This is called the rescheduled trial date.

Judgement and Appeal

Once the judgement has entered, either party is allowed to appeal the decision. Either party must file a notice of appeal with the court within 10 days after the judgment has been entered.

Execution

The is the formal eviction order. Once judgement is entered in favor of the landlord the court will provide the landlord with the execution 10 days after the judgment is entered. The tenant must receive the notice of execution with the date and time the eviction will take place at least 48 hours in advance. The execution order is valid for a period of no longer than 90 days.

Stay of Execution

The tenant can file what is called a stay of execution with the court asking them to order an execution be stalled for the purpose of allowing the tenant to find a place to live. Elderly or disabled tenants are permitted to a stay for up to a year.

Eviction: The tenant must move out when the execution order arrives. If the tenant does not move out, a sheriff may remove the tenant’s belongings and place them in storage.

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