This is a never seen before complete guide to how eviction case court process involving a property owner and the tenant are filed in court, the process involved and what to expect in court during the eviction proceedings be it a non payment or a holdover eviction case.
Eviction cases usually start with the property owner giving the tenant a notice either demanding for the rent or warning of an upcoming eviction case in court. The property owner must have a record of him/her demanding rent from the tenant before starting a non payment eviction case and must also ensure that all required notices are given and properly delivered to the tenant depending on the tenant’s type of tenancy in a holdover eviction case. We shall discuss type of tenancy and the required notices in our subsequent articles so let us concentrate on this eviction case court process.
In both non payment and holdover eviction case, the property owner or his/her solicitor needs to purchase an index number used to find cases and their location in which names of parties associated with a case are identified with. The owner or his/her solicitor also needs to purchase and complete the legal form, serve the tenant inform of a petition and file the papers in court with the clerk of the court.
After filing a non payment case, a postcard will be giving to the property owner informing of the date for the first hearing while the owner will have to pick a date for the first hearing in a holdover eviction case.
As soon as the tenant receive the notice of petition from the court, it serves as a wake up call or a call to action because he/she has only five days to answer the petition. The tenant must create time to carefully study the petition to determine reasons for the eviction proceedings. If the tenant has some or any defenses that can be presented as evidence in the court that clearly shows he/she did not owe rent and has not violated any terms on the lease agreement or may be there are reasons for withholding rent.
On the first hearing date of the case, the property owner and the tenant must be in court in good time to present and defend their case before the court. The owner must come to court with the papers he/she used in starting the case, the lease agreement, record to show rent owed by the tenant and any other documents that can prove his/her case. The tenant on the other hand must prepare and able to present copies of all documents that prove any of the defenses claimed and receipt of payment to present to the court.
Before the actual trial proceedings begins in court, the court usually encourages parties to a case to resolve their dispute out of court through negotiation or mediation and reach a mutually acceptable settlement agreement. In negotiation or mediation the property owner and the tenant are entitle to a solicitor to help them in the negotiation process in order to protect their interest. If both parties have no solicitor to represent them, a settlement conference will be arranged for both parties with the help of a court lawyer. If the property owner and the tenant are able to resolve the dispute and reach a mutually acceptable settlement agreement, this settlement agreement is written up as a stipulation. We strongly advice that both parties carefully study and understand the stipulation before signing it because a stipulation is a binding agreement and cannot easily be changed. The property owner and the tenant are free to ask questions if they are in doubt of anything and can also ask the judge or the court lawyer to explain the stipulation to them before signing it.
After the judge must have signed the stipulation, a copy each will be given to the property owner and the tenant. If the tenant fails to comply with the stipulation, the owner can ask the court for a judgment and a warrant for eviction. We must let the owner understand that only a sheriff, marshal or a bailiff can execute a court warrant for eviction in other words the actual eviction can only be carried out or performed by any of these authorized enforcement officers.
The constraints of a successful and smooth court process of a non payment and holdover eviction case is if the didn’t or refuse to answer the petition. In this case for a non payment eviction case the court will not schedule a hearing and the property owner can request a default judgment 10 days after the petition was served from the clerk of the court.
If a tenant didn’t show up in court in a holdover eviction case, the judge preciding over the case will hold an inquest and the owner must prove and show that the tenant was properly and adequately served. But if the tenant answer the petition and didn’t show up in court on the hearing date, the owner can ask for a default judgment.
After exhausting every means of resolving the dispute and both parties still can’t reach a settlement agreement, the case will be transferred to a trial court before another judge probably on a different day. At the trial court, the case is given good enough considerations and it is thoroughly weighed with great attention to evidence and information available to the court. If the property owner proved his/her case and the judge determines he/she should be awarded a judgment of possession for the property, in other words if the judge rules in favour of the owner. The judgment will be mailed to both parties stating date to surrender the property and if it is a non payment eviction case the judge may order payment of owed rent in five days so it is wise in our opinion to seek advice from your solicitor before requesting a trial in the court.
We hope this article answered most if not all of the questions you might have on eviction case court process.
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