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Evictions: Understanding the Basics of the Eviction Process

We got a call at our office this morning from a gentleman who found a "Three Day Notice to Quit and Vacate" taped to his apartment door. He wanted to know what this meant, legally speaking. (In his words, he wanted to know if an 18-wheeler would arrive on the fourth day to remove him and his belongings.)

Since this is a relatively common occurrence, we are sharing the answer with our readers, along with a brief explanation of the eviction process. (The same process applies to residential, commercial, and ag leases).

STEP ONE. The three-day-notice is the first step in an eviction proceeding (also known as "forcible entry and detainer"). State law requires this notice be given by a landlord to a tenant in two situations, including: (1) if the tenant continues to stay after the end of the lease term (called "holding over"); and (2) if the tenant fails to pay rent for three days when due. A process server or the sheriff will attempt to serve the notice on the tenant personally. If the tenant cannot be found on the first attempt, the notice may be posted "conspicuously" on the property, usually the front door.

STEP TWO. The tenant now has the option to leave the property within three days, or to remain on the property. (If you choose to stay without a good reason, you may be required by the Court to pay double rent.) On the fourth day, however, the landlord cannot simply throw you out on the street (i.e., no 18-wheeler yet). Instead, the landlord must first start a lawsuit and get the Court's permission to have the sheriff remove you and your belongings. To get this permission, the landlord will begin by drafting two "pleadings" called a Summons and a Complaint. The Summons tells you that a lawsuit is being started against you. The Complaint announces what the Plaintiff wants the Court to do and explains why the landlord is entitled to Court action. The Summons will be "served" on you by a sheriff or process server, or, in rare cases, published in the newspaper. These documents cannot be "posted" on your front door.

STEP THREE. The third step in the eviction process is the tenant's "Answer". The tenant has only four days to write his or her response to the Complaint and deliver it to the Clerk of Courts and to the landlord's attorney. If you do not serve and file an Answer, judgment will be taken against you by default.

STEP FOUR. A trial will be held as soon as the Court's calendar permits. In Minnehaha County, for example, the Court hears eviction cases only Thursdays. Thus, it may be a couple of weeks before the court hears your case.

STEP FIVE. The Court (or the Jury) will make its decision. If the tenant wins, the tenant remains on the property. If the landlord wins, the landlord will now have permission to remove you from the property. The Judge will sign a Writ of Eviction, which is delivered to the Sheriff, who will come to the property and forcibly remove the tenant. In addition, the winning party may be awarded their attorney's fees.

Tenants often represent themselves in eviction cases when the issues are relatively simple.
If your case requires an attorney's expertise, don't hesitate to call. Our firm regularly represents clients on commercial and ag lease disputes, and, on occasion, tenants facing residential evictions when the landlord is clearly in the wrong.