Real Estate

The Eviction Process and Tenants' Rights

By Beth Dillman, Attorney
A landlord who fails to follow specific state eviction rules and procedures may lose an eviction lawsuit. In addition, state laws give tenants specific rights to fight an eviction based on illegal landlord behavior, such as terminating a tenancy for a retaliatory reason.

Renting can sometimes seem easier than owning a house. Tenants often don’t have to worry about mowing the lawn, fixing major maintenance problems, or paying property taxes. However, tenants do have to follow certain rules, including paying rent on time and following all the terms of the lease or rental agreement; tenants who fail to do so may face the early termination of their tenancy and an eviction lawsuit.

Landlords also must comply with specific state laws and abide by the terms of the lease or rental agreement. Some tenants may think that if their landlord violates the lease or breaks a law, then the tenant is justified in withholding rent. In some states, this is true: Tenants may be able to withhold rent because of the landlord’s failure to maintain the rental unit according to legal standards. However, there are very specific rules tenants must follow when doing this, and not every state allows it. A tenant who withholds rent incorrectlycould face eviction.

Tenants have rights, but just like landlords, they must follow very specific rules and exercise those rights at the appropriate time. The middle of an eviction case is not always the best time.

The Eviction Process

Eviction lawsuits have different names depending on each state. Some states refer to them as unlawful detainer suits; others call them dispossessory proceedings; while still others refer to them as forcible entry and detainer suits. While some of the details may change from state to state, the basic idea is the same: An eviction lawsuit is the only legal way a landlord can remove a tenant from a rental unit.

Because an eviction is a legal case, both the landlord and the tenant must follow legal rules and procedures. To begin the case, the landlord must legally terminate the tenancy, and then will need to file some paperwork with the court. Again, this paperwork will differ from state to state. In some states, the landlord will file a complaint and summons. In other states, the landlord needs to only file an affidavit. In all cases, this initial paperwork is the time for the landlord to lay out all the reasons the eviction should occur. The tenant will then have an opportunity to respond (with a form called an answer), and the court will set a time and date for either a hearing or a trial before a judge. At the hearing or trial, the judge will listen to all the evidence presented by the landlord and the tenant, including any paperwork or witnesses that help either side. The judge may make a decision at the hearing or trial, or the judge may make a decision a few days later and inform both parties. If the landlord is successful, the judge will issue an order (sometimes called a writ of execution, warrant for removal, or writ of possession, among other names). This order will authorize an officer of the law (a sheriff or constable) to actually evict the tenant by a certain date.

Although the eviction lawsuit has all of the elements of a civil case, this lawsuit usually happens much faster than other cases. Trials or hearings before a judge are usually set within one month of the landlord filing the initial paperwork, and the judge usually makes a decision at the time of the trial or hearing. The eviction will typically occur less than two weeks after the judge issues the order for eviction.

For details on state eviction rules and procedures, see the Evictions and Terminations section on (under the Renters' category).

Effect of Eviction

Evictions can be expensive, especially if the tenant chooses to fight the eviction. Aside from the expense, even if the tenant wins the eviction lawsuit, the tenant will still have the stress and stigma of having been involved in the lawsuit in the first place. An eviction can also appear on the tenant’s credit report and affect the tenant’s credit and future housing opportunities.

Some states have enacted laws that could help tenants who won their eviction case or had the case dismissed. For example, California has a law that prevents eviction lawsuits from becoming public record for 60 days after the lawsuit starts. If the tenant wins the lawsuit, then the case is sealed and no one can access it unless the person has good cause to see it. Other states, like Minnesota, allow the tenant to expunge the eviction; this means the tenant can remove the eviction from public record, but only for good cause.

Unless the tenant has been able to remove the eviction from the public record, the tenant should never hide an eviction on a housing or job application that asks about it. Evictions are public record, and the tenant could be accused of fraud by trying to deny it happened. The tenant may still be able to find new housing by showing a good credit score, steady income, and a clean rental history with good references since the eviction.

Tenants' Rights and Remedies

It is important to remember that a landlord must follow the terms of the lease or rental agreement and abide by the law. If the landlord doesn’t, the tenant may have a legal defense to an eviction lawsuit. For example, a landlord who attempts to evict a tenant for a discriminatory or retaliatory reason may lose the lawsuit if the tenant is able to prove the landlord's illegal behavior. See the Being Evicted or Breaking a Lease section of for details on tenant defenses to eviction in different states.

Consulting an Attorney

A landlord or tenant who has any questions regarding an eviction or other legal issue should consider consulting an experienced landlord-tenant attorney. Some attorneys will provide initial consultations for free or at reduced rates. Legal aid organizations also offer free legal help to those who qualify based on income. If the landlord has an attorney, it is probably a good idea for the tenant to get one as well (and vice versa).

Questions for Your Attorney

  • My landlord is threatening to evict me because I participated in a recent political protest. Is that legal?
  • What type of eviction information is included in credit reports and how long does it stay there? How will an eviction affect my credit score?
  • I refused to pay a recent rent increase because I think my landlord raised the rent because I recently complained to the local housing authority about inadequate heat in my building. Now the landlord has given me a nonpayment of rent notice for the unpaid rent increase. I don't want to be evicted, but I don't think the rent increase is fair. What are my options?

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