Eviction
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(Redirected from Unlawful detainer)
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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).
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 termeviction 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 specificjurisdictions. In present-day practice and procedure, there has come to be a wide variation in the content of these terms from jurisdiction to jurisdiction. One should not assume that all aspects of the discussions below will necessarily apply even in all states or other common law jurisdictions.
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[hide]The eviction process[edit]
Though the procedures for evictions differ depending on the specific laws of various jurisdictions, the general process consists of 1) giving notice to the tenant (and any other person residing there as well) to leave the premises, 2) if the tenant fails to leave the premises, filing a lawsuit to evict the tenant and regain possession of the property (along with amounts owed for damages, unpaid rent, and/or court costs and attorney's fees) and appearing in court, and 3) if the tenant still remains in the premises, forcibly removing the tenant from them via legal action.
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.
Notice[edit]
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). A landlord may evict a tenant "without cause" (i.e., the landlord simply desires to end the landlord-tenant relationship without the tenant being in breach of the lease, such as when a lease is about to expire) or "for cause" (i.e., the tenant is in breach of the lease, such as non-payment of rent or allowing criminal activity to take place on the premises).
The notice to vacate may either be conditional (i.e., the tenant may remain in the premises if certain actions are taken prior to the specified date) or unconditional (i.e., the tenant can not do anything to avoid the eviction and must leave by a specified date).
If the termination is without cause, the tenant is generally given a longer period of time (generally 30 days) to vacate than if the termination is for cause, in which case the tenant may have a short amount of time (perhaps as few as three days) in which to correct the violation. In some jurisdictions, landlords may not be able to terminate a lease without cause (such as in rent control jurisdictions). Where the law permits, a landlord and tenant may agree to a different period of time for notice requirements than specified in the law.
Lawsuit and trial[edit]
If the tenant remains in possession of the property after the notice to vacate has expired, the landlord would 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.
If the tenant does not file an answer or appear in court, the landlord can then request a default judgment and win the lawsuit automatically, being awarded possession of the property, rent in arrears, court costs, and other costs where allowed by law such as attorney's fees or reimbursement for other costs incurred by the tenant (such as to repair property damage or unpaid utilities). By filing an answer or appearing in court, the tenant may state his or her side of the story, and provide affirmative defenses, such as the landlord not giving proper notice to vacate or that rent was paid. If the judge or jury sides with the tenant, the tenant remains in possession of the property, but the judge or jury may still order any past due rent to be paid, plus any fees and costs.
If the landlord wins, the tenant must then move within a specified time, generally less than a week, although the tenant can ask for a stay of execution or appeal the verdict. In some jurisdictions where a tenant has failed to pay rent, the law may allow the tenant a right to redemption, which means that the tenant may avoid eviction and remain in the property by paying the full amount of rent due, plus all other fees owed to the landlord as awarded by the court, by a specified date.
Removal from the property[edit]
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 return on a specified day to remove the tenant from the property if the tenant has not moved. On that day, if necessary, the officer may physically 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).[citation needed]
Any possessions of the tenant still on the property may be turned over to the tenant, put in storage for the tenant, placed outside the property, seized and sold under a writ of garnishment (which the landlord would also be required to obtain, though certain items such as personal effects are generally exempt by law from forced sale) and/or consideredabandoned, depending on local laws. The rental property is then turned over to the landlord.
Depending on the jurisdiction, even after eviction the landlord may still bring suit against a tenant for "holdover rent" (i.e., rent for the period between the date of the lawsuit and the date of actual eviction) and other items such as unpaid utilities or property damage.
No-fault evictions[edit]
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 has impacted cities such as San Francisco, Santa Monica and Los Angeles.[1][2]
Just-cause evictions[edit]
Some areas have "just cause eviction" laws, which prevents evictions for reasons other than an approved list. For example, Seattle's ordinance requires a court order (and in some cases relocation assistance) and allows evictions for:[3]
- Failure to pay rent or late payments after written warning more than four times per year
- The tenant has failed to correct a violation of the lease or laws concerning public nuisance, sanitation, unlawful business, or habitually causes warnings to be issued with corrections made
- The owner's family is moving into the unit and no adequate other units are available
- The sale of a single-family home
- Tenant-employees who are no longer employees
- Renovation, demolition, or conversion to non-residential use
- Violation of a legal requirement, such as building suitability or number of occupants
- Tenants who live with the owner
- If drug or health and safety-related crimes are committed (by the tenant or with the tenant's consent) on the property, street, or neighboring properties
Some property owners criticise just cause eviction laws as a backdoor way to impose rent control.[4]
Countries[edit]
England and Wales[edit]
In this jurisdiction, so far as private sector and not-for-profit sector tenancies are concerned, the relevant statutory basis for a claim for possession is Part 1 of the Housing Act 1988. A Section 8 Notice provides a landlord with authority to bring a possession claim in the County Court, nearly always against a tenant who has breached their tenancy agreement. Only in certain restricted cases is the Court obliged to order possession - typically where more than 2 months' or 8 weeks' rent arrears are owed (a "Ground 8" Notice). But serious breaches which are not seen as capable of remedy by the Court will still result in an eviction which will take effect within a few weeks.
There is also the section 21 Notice procedure, which differs from a section 8 notice as it can only be acted on after the fixed term of the tenancy has elapsed, whereas a section 8 can be served and acted on during the fixed term of the Assured Shorthold tenancy, or (if there is no fixed term) even during the first 6 months. The s.21 Notice requires no fault on the part of the tenant in order for it to be served and acted upon, but if it is correctly served, the tenant has no defence in court. Most private sector landlords rely on the s.21 procedure, and if only a possession order and costs are sought, there will be no Court hearing if the tenant has no defence. Some Housing Associations and Housing Trusts (a.k.a. Registered Providers of Social Housing) in the not-for-profit sector also use Ground 8 and s.21, but generally only in certain restricted cases.
As a rule, private sector tenancies that began before 16 February 1989 are still subject to the Rent Act 1977.
In the public sector ("Council tenancies"), the different and generally more liberal regime of Part 4 of the Housing Act 1985 applies. A similar procedure of pre-litigation Notices setting out the grounds on which possession is sought applies, though. Under the 1985 Act, the Court is only obliged to evict a lawful tenant if there is alternative accommodation available to them, though serious and/or irremediable cases of tenant misbehaviour or high rent arrears may also result in the Court deciding that an eviction within a few weeks is the only just remedy.
Some tenants fall outside the statutory regimes for various reasons (some simple, some technical), and the foregoing procedures do not need to be followed, though as a rule a Court Order is required for all but the most temporary sorts of accommodation. Once the time for giving up possession has expired under the relevant Court Order, a warrant enforced by an Enforcement Officer is usually needed to remove any remaining occupiers.
Homeowners who occupy a property under a mortgage; or who hold a long residential lease ("leaseholders") are subject to different procedures, too.
Germany[edit]
In Germany, court-issued eviction order must include a list of all persons to be evicted. If the property turns out to be used by someone else, the owner needs a new eviction order. It is unclear how cases are treated where the identity of a squatter is unknown. Self-help eviction is only allowed if it is clear that the tenant or squatter has moved out but refuses to return their keys. Landlords are not allowed to keep a spare or master key when renting out an apartment.
Mark Leno
From Wikipedia, the free encyclopedia
| Mark Leno | |
|---|---|
 | |
| Member of the California State Senate from the 11th district 3rd district (2008–2012) | |
| Assumed office December 1, 2008 | |
| Preceded by | Carole Migden |
| Member of the California State Assembly from the 13th district | |
| In office December 2, 2002 – December 1, 2008 | |
| Preceded by | Carole Migden |
| Succeeded by | Tom Ammiano |
| Member of the San Francisco Board of Supervisors from District 8 | |
| In office April 22, 1998 – December 2, 2002 | |
| Preceded by | Susan Leal |
| Succeeded by | Bevan Dufty |
| Personal details | |
| Born | September 24, 1951 Milwaukee, Wisconsin, U.S. |
| Nationality | American |
| Political party | Democratic |
| Alma mater | University of Colorado at Boulder |
| Profession | Politician, Businessman |
| Religion | Jewish |
Mark Leno (born September 24, 1951) is an American politician, representing California's 11th State Senate district, which includesSan Francisco and part of San Mateo County. He was first elected to the State Senate in 2008 and is the first openly gay man to serve there.[1] Leno was previously one of the first two openly gay men (along with John Laird) to serve in the Assembly. He also served as a member of the San Francisco Board of Supervisors between 1998 and 2002 after being appointed by Willie Brown. Leno is the owner of Budget Signs Inc., a small business.
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[hide]Early life and education[edit]
Leno is the grandson of Russian Jewish immigrants. A native of Milwaukee, Wisconsin, he attended Nicolet High School, and later the University of Colorado at Boulder. He was valedictorian of his graduating class at the American College in Jerusalem, where he earned his Bachelor of Arts degree. Leno also spent two years in rabbinical studies at Hebrew Union College in New York. Afterward, he moved to San Francisco on the invitation of his sister. He lived his first four years in the Tenderloin before moving to the Noe Valley neighborhood.[citation needed]
In 1978, Leno started Budget Signs as owner and operator. The business incorporated in 1982. Working with his life partner, Douglas Jackson, the business continued to grow and their involvement in community affairs steadily expanded. Jackson died from complications related to AIDS in 1990.[2][3] Prior to his election, his political background included raising money for candidates and causes such as AIDS services, the San Francisco LGBT Community Center, the U.S. Holocaust Memorial Museum, and the Democratic Party.[3]
Board of Supervisors[edit]
Leno was appointed to the San Francisco Board of Supervisors by Willie Brown in April 1998. He was elected citywide to the San Francisco Board of Supervisors in November 1998 and re-elected in the reinstated district races of 2000. Leno's district included The Castro, Noe Valley, Glen Park, Diamond Heights, Twin Peaks, Duboce Triangle, and the westernmost part of the Mission District.
Leno introduced legislation to allow tenants to replace a roommate without losing their lease, measures to aid those with HIV/AIDS, and a measure to promote the federal Earned Income Tax Credit to help low income residents.[4] He authored legislation to banmercury thermometers, one of the first such proposals in the country. In 2000, as a supervisor, he supported Proposition L, the slow-growth measure and authored legislation to protect neighborhood business districts from big box retail. [clarification needed] He was a statewide spokesman for the No on Proposition 22 campaign.[5]
In 2001, Leno successfully introduced an ordinance providing equal access to the city's health plan for transgender employees of San Francisco.[6]
State Assembly[edit]
He was then elected to the California State Assembly in 2002, and was re-elected in 2004 and 2006. Leno was the chair of the Assembly's powerful Appropriations Committee, as well as the Select Committee on Childhood Obesity & Related Diabetes.
In 2005, Leno authored AB 849, a bill legalizing same-sex marriages that became the first bill of its kind to pass a legislative body in the United States. The bill passed both the Assembly and the State Senate,[2] but was vetoed by Governor Schwarzenegger. In 2007, Leno introduced AB 43, the Religious Freedom and Civil Marriage Protection Act, that would have allowed for same-sex marriage.[2] This bill passed the Assembly and Senate, but was again vetoed by Governor Arnold Schwarzenegger. Same-sex marriage was legalized by theCalifornia Supreme Court in a May 2008 decision, becoming effective June 16, 2008.
In 2006, Leno and Republican Assemblyman Chuck DeVore co-authored a bill that would legalize the cultivation of non-psychoactivehemp. The bill does not conflict with the federal Controlled Substances Act, and would mandate that hemp be tested to ensure it is non-psychoactive.[7] He authored California Assembly Bill Number AB 1668, on February 23, 2007 — a bill encouraging Open Document Formats ODF in California.[8]
In Leno's first two terms in the Assembly, 58 of his bills were signed into law. Leno co-authored AB 32 to cap greenhouse emissions. He authored AB 706 to prohibit the use of fire retardants in upholstered furniture. He authored AB 2573 to allow San Francisco public utilities to install solar panels on public infrastructure. He also authored Assembly Bill 1358, the California Complete Streets Act, to require cities and counties to consider including walking and bicycling in their general plans. He coauthored the AB 583, "California Clean Money and Fair Elections Act", to bring public financing to political campaigns.
State Senate[edit]
In 2008, he won the Democratic Party nomination for California's 3rd Senate district with 43.8 percent of the vote, defeating incumbent Senator Carole Migden, who had 28.6 percent of the vote, and former Assemblyman Joe Nation, who had 27.6 percent of the vote. Leno was a principal co-author of SB 840, the Single-Payer Universal Health Care Act, which would have provided health care coverage for all Californians and would have replaced hundreds of health insurance companies with state-provided coverage.[9]
He also authored of SB 810, the California Universal Health Care Act. In 2008, Leno introduced legislation he named the "Airline Passenger Bill of Rights". The bill requires airlines to provide basic needs for passengers, such as water, snacks, fresh air, sanitary restrooms, and lights if a plane is delayed on a tarmac at a California airport.[10]
In 2013, Leno authored a state budget bill that included a rider exempting local governments from some provisions of the state Public Records Act. Many newspapers strongly criticized the rider, and the ACLU of Northern California said, "Interfering with public access to public records will only shroud elected officials in more secrecy at a time when transparency is more crucial than ever before."[11] The budget bill passed and was signed into law, but the Records Act provision was later rescinded by the legislature.[citation needed]
In September 2013, Leno authored, and the legislature approved, a state constitutional amendment regarding the Public Records Act. The amendment clarifies that local governments must comply with requests for publicly available documents, and requires local governments to pay in full the costs of those requests. The amendment was approved by voters in the November 2014 election as Proposition 42.[12]
Awards and honors[edit]
In 2006, he was honored by the Stonewall Democratic Club in Los Angeles with their Sheila Kuehl Trail Blazer Award, the Lazarus Project’s Lazarus Award for Marriage Equality, the California Young Democrats’ Mentor of the Year, Partners Ending Domestic Abuse's Kamala Harris Leadership Award, and Temple Beth Chayim Chadashim's 2006 Herman Humanitarian Award.[2]
In 2005, he was honored by the California Attorneys For Criminal Justice with their “Scales of Justice Award” in recognition to his fair and balanced approach in chairing the Assembly Public Safety Committee.[2] He received the “Lifetime Friend and Champion” award from the Harvey Milk Lesbian, Gay, Bisexual, Transgender Democratic Club and was chosen by OUT Magazine as one of 2005’s “Most Intriguing Gay Men.”[2]
In 2004, Leno received the Award of Courage from American Foundation for AIDS Research and he was honored by the Lesbian and Gay Lawyers Association of Los Angeles at their 25th Anniversary. He also served as Chair of the California Legislative LGBT Caucus.[2]
In 2003, Leno earned recognition from the American Heart Association, the California Association of Food Banks and Parents, Families and Friends of Lesbians and Gays.[2]