Remedies for Landlords
As a landlord, you must be aware of the laws and procedures required to evict a tenant. The following is basic guidance that you need to know; it is not intended to serve as legal advice, which should be sought from a qualified attorney.
The Justice Court has exclusive jurisdiction over every eviction, which commonly is known as a "forcible entry and detainer" (FED). An FED takes place when an individual enters a premises of another without legal authority or by force and refuses to surrender it by demand. A demand to vacate the premises must first be given to the tenant in writing, regardless of whether or not the lease is in writing or is just based on an oral arrangement. The length of time a landlord must wait before filing an eviction complaint should be noted in the lease; if not, the law requires a three day notice. If an individual has taken possession by forcible entry, the landlord can demand possession orally and is not required to wait three days before filing the suit. When filing, the landlord should identify the leased premises and state the facts which entitle the landlord to the posession. After the landlord files the complaint alleging a forcible detainer and pays a fee, the Justice of the Peace (JP) will issue a citation which then will be served by the Constable Department. By having the citation served by the Constable Department, the landlord can be absolutely assured that the service is valid and timely. The citation can be served on the tenant or anyone over the age of 16 years of age at the residence. The citation will include an appearance date and a copy of the complaint. The appearance date can not be more than ten days nor less than six days from the date of service of the citation. If the Constable Department is not successful in serving the tenant after two attempts, the officer can effect substitute service by posting the citation on the tenant's door; the Constable then will mail the citation along with the complaint to the defendant on that day or the following day.
After the eviction suit is filed, the landlord can file a possession bond in an amount fixed by the Justice Court which will depend on the probable amount the defendant would be damaged in the event that the eviction suit was properly effected. This bond will allow the landlord to take possession of the premises immediately after the expiration of six days from the date the tenant is served notice of the filing, unless the tenant demands a trial or files a counterbond within six days. If the tenant demands a trial or posts a bond within six days, but the JP still rules for the plaintiff at trial, the defendant still has five days to move out of the premises. An eviction hearing is informal, where the JP will pose questions to both parties. If the tenant loses, he/she will have a minimum of five days before a writ of possession can be executed to remove the tenant from the premises. If the plaintiff receives judgment for possession from the Court, on the sixth day after the judgment is signed, the plaintiff can have the judgment executed by a writ of possession. The writ will command the Constable to instruct the tenant and all other occupants to leave the premises immediately. If the persons fail to comply, the Constable can physically remove them. The Constable also will instruct the tenant or landlord to remove all personal property from the premises. The propert will be removed to a nearby location but not blocking a sidewalk or street, and not while it is raining, sleeting, or snowing. The Constable, as a courtesy, normally will post a warning 24 hours prior to the actual execution of the writ. The Constable has the legal authority to employ the services of a bonded warehouseman to remove and store the property. |
