RESIDENTIAL EVICTION QUICK GUIDE

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RESIDENTIAL EVICTION QUICK GUIDE

• SUMMARY PROCEDURE Evictions should be given
  priority over non-time/money sensitive cases.

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• SIXTH / TENTH BUSINESS DAY after Tenant served,
  file should be brought to Judge.
• ONCE JUDGE SEES FILE Judge should quickly review
  file to determine if
• DEFAULT is proper OR
• HEARING should be set AND
• ORDER should be entered ordering money should be
  placed into the Court Registry

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COMMON DEFAULT SITUATIONS

• 1. Tenant residential, failure to pay rent, has
  Defaulted (no answer filed) - Final Judgment
  should be signed.
• 2. Tenant has Defaulted (answer filed) but has
  not posted rent into the court registry.

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• A. If full amount of rent as alleged in complaint
  is posted into court registry, Tenant is entitled
  to a Trial.
• B. If Tenant alleges that they have paid the
  rent, they are entitled to a Trial.
• C. If partial amount of rent is posted into court
  registry, some judges will set case for Trial and
  order the balance to be placed into court
  registry by a fixed date or a Default Judgment
  will enter.

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• Tenant has a right to challenge the amount of
  rent that is asked for in the complaint.
• Problem Sometimes the Tenant will simply file a
  hollow Motion to Determine Rent saying I
  disagree with the amount owed.
• The motion is defective if it fails to allege
  that the rent asked for in the complaint in in
  error and to attach Documentation.

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• If Tenant admits owing an amount of rent but
  denies the amount claimed, the judge should ORDER
  the undisputed amount into the Court Registry.
• Motion to Determine Rent -- Judge determines how
  much if any rent is to be placed into the court
  registry.

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MOTIONS TO DISMISS

• Defective 3-Day Notice
• a. Failure to exclude holidays
• b. Amounts other than rent demanded
• c. Mailed notice omitted to add 5 days
• Improper parties
• a. Not all Tenants named on 3-Day Notice
• b. Improper owner as Landlord
• c. Fictitious name not filed for Landlord

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• 2 VIEWS BY JUDGES
• These are fatal defects so that case must be
  dismissed if deposit is not made OR,
• These are not fatal and Tenant is still defaulted
  if rent money is not placed into the registry
  (View of Judge Hauser)

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SCHEDULING EVICTION TRIALS

• Tenant has alleged all rent has been paid. Order
  accrued rent be placed into the Court Registry
  should be entered.
• The Tenant in possession would not typically be
  prejudiced by a delay in the Trial date.
• Continuance should be limited due to the
  potential waste and rent loss and the fact that
  it is under Summary Procedure.

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EVICTION TRIAL PROCEDURE

• If all parties are NOT present, wait at least 20
  minutes then take uncontested Evictions first
• Ask parties if they have had a chance to talk
  If the answer is NO, give a 10 minute chance to
  send parties into the hall to discuss case.
• Before beginning Trial, ask Tenant if they wish
  to stay, have vacated, are on their way out or
  just need a little time.

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• Once Trial begins, often the Judge will often ask
  the Tenant, Have you paid the rent.
• If the answer is NO and it is due to financial
  difficulties, job loss, etc, it may be
  appropriate to enter Final Judgment of Eviction.
• If the answer is NO and is due to habitability
  issues, Tenant must prove they gave the Landlord
  A Seven Day Notice of Withholding Rent.

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• If the Tenant proves notice, the Tenant may be
  able to advance a valid defense if Tenant prove
  Landlord's material noncompliance.
• A. The judge can then DENY the Eviction at Trial
• B. Reduce the rent as the evidence presents
  itself at Trial

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MEDIATION

• Rather than setting the case for Trial, Court may
  direct parties to Mediation upon deposit.
• PROBLEMS
• Where settlement is not reached, there is
  sometimes a delay until the trial date
• Mediation order that fails to require the accrued
  rent to be deposited

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SETTLING THE EVICTION CASE

• The 2 common types of STIPULATIONS are
• 1. THE PAY AND STAY STIPULATION whereby the
  Landlord AND Tenant work it all out.
• 2. THE TEMPORARY STIPULATION whereby the Tenant
  agrees to leave at a fixed date maybe paying a
  bit for the privilege or not.

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• A NOTE ON STIPULATIONS Some judges will
• Refuse to sign stipulations that continue on once
  the Tenant gets caught up or,
• Would require the Tenant to be served with a new
  3 day notice and/or posting of the notice of
  Default.

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STAYING THE WRIT OF POSSESSION

• MOTION TO STAY WRIT OF POSSESSION should
  immediately be looked at by the judge to
  determine if there is any merit.
• JUDGE CAN deny stay ex parte or set an emergency
  hearing.
• SOME MERITORIOUS REASONS
• Landlord has accepted rent OR
• Made a deal with the Tenant.

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DISBURSING THE DEPOSIT

• The Tenant may deposit rent into the Court
  Registry, have a Trial etc.
• If there is an issue regarding entitlement to the
  Court Registry, the Judge may set this for a
  later Trial.