The top two most frequently asked questions we�ve been asked from potential clients over the last 31 years of being in business are:
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1.�How long will my case take? (To see eviction process charts, click one of these; for uncontested or contested case process) and...
2.�How much will it cost? (for this answer, click here)
Our service here at the Law offices of Ned T. Ashby and Landlord Services, include:�
Both of the most frequently asked questions have been answered.� Not quite yet.� The question of �how long will my case take?�� Needs further amplification. Eviction case time and reasons for election delay can be divided into four separate categories.� The first is the eviction notice process, the second is, uncontested eviction process, the third category is contested evictions and the fourth category is miscellaneous or a catch all, if you will.� In the first category or eviction notice process falls within the realm of the landlords control, or in the case of attorney, his control, and follows very simple rules with regard to the proper selection, preparation, service of the eviction notice upon the tenant and landlord behavior during the eviction notice compliance period.
From the chart below you can see that most, if not all, of the potential delays can be avoided when the correct form notice is selected, the proper instructions for filling out the notice are completed, when the proper method of notice service upon the tenant is done and when proper behavior is shown on the landlord�s part during the eviction notice period.� With respect to category two and potential eviction delays in the uncontested eviction process; the least amount of time and reasons for eviction delay can occur here except to note that there are varying delays which can occur during the Sheriff�s final eviction process.� The third category or contested eviction is tenant initiated and a number of factors must be taken into consideration when calculating case time and potential eviction delays. This category is wrought with potential eviction delay tactics that can be brought about by the tenant, most of which are unavoidable yet can be minimized by the attorney.
Most Delays Are Caused By The Tenant
The vast majority of attempted and completed eviction delays are caused by actions taken by the tenants. The number one delay tactic taken by tenants is the filing of an Answer in court after they have been served with a summons and complaint. This causes the landlord�s attorney to set the matter further rather than the earliest available court trial date.� This delays the process by a minimum of 21 days.� In most every eviction case where the tenant files an answer, the tenant�s answer is usually not a sufficient defense that will prevail in court. Most tenants filing a response to the complaint do not have a proper defense to the complaint and are seeking only to delay the process.
Because today all it takes is a blank legal form filled out and a $200 filing fee (and in some cases tenants asked the court to waive their filing fee because of lack of sufficient income), landlords will have to absorb the additional one months minimum rent loss when a tenant files an answer.�
Other Potential Delays: Eviction notice forms, selection, preparation, service, counting the days of compliance, and landlord-tenant behavior
The first part of the process that got codified was the requirement of the landlord to serve the tenant with an appropriate eviction notice, here are some of the delays that can occur during the eviction notice process:
Eviction Notice Delays
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Potential Eviction Delay Reasons |
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Action Taken to Avoid, Minimize or Eliminate Delays |
Eviction Notice Defects: |
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Noticed preparer needs to check and recheck eviction notice for potential mistakes, see �The Mistakes Landlords Can Make in Preparing and Serving an Eviction Notice.� I NEED THIS LINK |
| (1)� Adding a late charge to the rent due |
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These need to be filled out BERNIE? |
| (2) Incomplete rental address |
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| (3) Misdating the notice |
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| Court Holidays |
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To answer the first question, �How long will my case take?� Each and every eviction we do here at the Law offices of Ned T. Ashby and Landlord Services has a goal attached to it; because most cases we handle are for nonpayment of rent, we know that �time is rent loss,� that most of these tenants have no intention of paying anymore rent, nor vacating the premises on their own (and that many tenants are under the misbelief that they can stay as long as �90 days� and not move out (this is clearly a wives tale) and that our client is very anxious to see the old tenant move on so that he or she can find a new quality tenant to rent the premises. To that end, we have adopted over the years a �fast-track system� that we apply to each and every eviction case we handle.� Although every uncontested eviction cannot be handled in as little as 13 days because of any interceding holidays, weekends, tenant consternation, and process server ease or difficulty in serving the tenants with legal documents, most uncontested cases are process on average in 18 to 27 days (this is from the last day of eviction notice expiration to the last day of the Sheriff�s Final Vacate Notice).�
Potential eviction delays; even though the tenant is not fighting the eviction action (i.e. �uncontested�) and is probably doing his or her best to avoid the inevitable, some delays can occur in uncontested cases and they are as follows;
Uncontested Evictions Action Delays�
Potential Eviction Delay Reasons |
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Action Taken to Avoid, Minimize or Eliminate Delays |
Tenant attempted avoidance at being served with the summons and complaint � after the eviction action is filed in court the clerk issues the summons and file endorses the complaint in unlawful detainer, which has been prepared by the landlord or his or her attorney.� The process server is given a copy of each and is instructed to personally hand these documents directly to the tenants now named defendants at their place of residence any known place of employment or business or anywhere else the tenant may be found quickly. If the tenant refuses to answer is personal residence door cannot be found at any known employment and avoids being served with the legal documents. |
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After a proper due diligence period (usually 2-5 days after filing eviction action in court);
Process servers may employ substituted methods of service to serve the defendants anywhere (adds a minimum 11 days on to 5 day summons response time).
This tenant avoidance and substituted a service methods adds a couple of weeks additional time delay.
The more tenant personal information the process server has, such as, tenant physical description, place of employment or business, description of tenant car, best times tenant is at home or place of employment, etc. will greatly assist process server in personally serving the legal documents upon a tenant. |
| The need for a declaration and posting summons and complaint order and delivery to court |
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Landlord or attorney may apply to the court for a posting order. This process adds anywhere from one day to one week (a copy of the summons and complaint is posted on the tenant�s front door and a copy of his mailed by certified mail). |
| Difficulty with Judge signing posting order
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Have attorney or other qualified personnel personally deliver posting order to for judge�s signature. Judges depending upon their court schedule and other duties take from between one day and one week to sign posting orders. |
| Process server difficulty in accessing subject premises
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Asking the client at the new client case intake interview stage; are there any difficulties that are process server should be aware of in accessing the property, such as a front door security, a need for key, security gate code, vicious dog, etc.? Lack of this information can delay the process server from one to several days of time. |
| Process server delay in delivering proofs of service of summons and complaint. |
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Require process servers to deliver proofs of service within 48 hours of delivery of same to tenants. |
Attorney or client mistake in preparation of summons or complaint � it happens from time to time that a clerical error is made on preparation of these documents or the client landlord did not provide the correct information such as the correct spelling of the subject premises address, etc. |
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Attorney or landlord requests court to correct document or files and serves an amended complaint.
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Defendant tenant requests extension from court to file a response. |
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| Court Holidays |
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Contested Evictions � 35% of eviction cases fall into this first category
When an eviction case becomes contested (which means the tenant fights or contests the landlord�s eviction) we still apply that same �fast-track system� to processing the eviction action so that most contested cases are processed in an average of 30 to 60 days. Tenants cause the vast majority of these eviction delays. See chart below for the varying reasons and what actions can be taken to minimize their effect.
Contested Eviction Action Delays
Potential Eviction Delay Reasons
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Action Taken to Avoid, Minimize or Eliminate Delays |
Your tenant; his or her personality, proclivities, tendencies to wrong a right, and to display and down other anti-responsible behavior � that�s right you attracted, qualifying and rented to him or her, and now that the tenant faces eviction, he or she will do whatever they feel is right for them to defeat the eviction or at minimum delay the eviction process. |
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Type of Tenant
Is a lawyer or a law student (or a would be law nut)
Knows a Lawyer, i.e., brother, sister, friend
Has made bold statements of fighting eviction
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Tenant generated motions: |
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| Motion to Quash the Service of Summons |
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Demurrer |
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| Discovery by defendant; Request for Interrogatories, Production of Documents, etc. |
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Tenant files bankruptcy. |
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The landlord attorney must prepare an application for request for relief from stay from the bankruptcy court.� This process delays the eviction from seven to 30 days typically. |
| How the landlord treated the tenant during the landlord-tenant relationship, including fulfilling maintenance requests, other promises, etc.
Was tenant mistreated by landlord?
Has significant habitability issues? |
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Client Cooperation,
Lack of cooperation
Failure to disclose salient facts
Hides significant facts
Habitability
Personality issues
Exchanging work for rent |
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| Court Holidays |
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Miscellaneous Eviction Delays�
Potential Eviction Delay Reasons
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Action Taken to Avoid, Minimize or Eliminate Delays |
Tenant requests stay of execution on the writ of execution for possession of real property.
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After possession judgment is entered, but more typically after the sheriff serves the tenant with the final notice to vacate (minimum five days), the tenant can request from the court a stay or extension of time before the sheriff returns to complete the physical eviction. Tenants normally request 7 to 14 days and may request up to a total of 40 days from date of judgment.� Almost all courts now as a part of their policy require that the tenant pay the daily rental value of the requested stay into court before any state of eviction is granted. The landlord and/or his attorney is given an opportunity to oppose such a stay usually on a 24 hour advance notice. |
| Filing of a Claim of Right of Possession; any adult tenant living at the property prior to the landlords filing of the summons and complaint (lawsuit filed in court) who is not named in the lawsuit (including any �Does 1 through 10,� etc.) MAY through the sheriff�s office file a claim of right of possession form.�
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The court then is required to set the matter for court hearing where both the claimant and landlord, including the landlord�s attorney, and testify as to any creation of tenancy on the part of the claimant.� If no tenancy has been established by way of for example, payment of rent, then the court would deny the claim and instruct the sheriff�s office to complete the eviction.
Avoidance of this claim is done by way of the attorney preparing and serving eight prejudgment claim a right of possession at the time the summons and complaint is served on the tenants.
The potential delay if a claim of right of possession is filed is approximately one to two weeks. |
| Sheriff�s Office:
Holidays
Short staff (vacations, government funding, etc.)
Human mistakes |
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Landlord not checking the property regularly to see if tenant has vacated. |
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| Post judgment declaration, orders
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| Post judgment Motions
Request for Stay of Execution |
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| Court Holidays |
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