Although each state's landlord and tenant laws may vary, all states allow landlords to evict tenants who refuse to move out at the end of their tenancies. A tenant who stays after the end of the lease or does not move out upon request is a holdover tenant. To evict a tenant, the landlord must file an unlawful detainer suit in court to begin the formal eviction proceeding.
Once a landlord receives a writ of possession, he can take it to the sheriff or constable, who will then remove the tenant from the property.
When a landlord delivers a notice of termination request to his tenant, the notice sets forth a minimum number of days to comply with the lease or move out. The period of time he must provide is dependent on his state's landlord and tenant laws.
In most states, a landlord must provide his tenant with actual written notice of his intent to file a lawsuit for eviction. If his tenant has not moved out by the date provided or has not otherwise complied with the terms of his lease, a landlord can file an unlawful detainer or motion for eviction.
Although states have different legal terms for an eviction lawsuit, the requirements are typically the same in all states. A landlord must file a motion in court and request a private process server or sheriff to personally serve his tenant with the motion.
Writ of Possession
A writ of possession allows a landlord to reclaim his property from a holdover tenant. If a tenant does not move out by the date provided on the writ, the local sheriff's office will remove the tenant's personal belongings and escort her out of her apartment. A landlord must file a writ of possession before he can remove his tenant. In most states, he may not resort to locking his tenant out on his own volition or removing his property.
Motion for Eviction
After a landlord files a complaint and serves his tenant with a motion for eviction, the county clerk in which his property is located sets a date for an eviction hearing. A tenant can object to the bill of complaint by filing a written answer by a certain date.
Many states allow landlords to file summary eviction proceedings if their tenants do not comply with their leases or have failed to pay rent. If a tenant fails to file an answer or appear in court, a judge issues a default judgment in the landlord's favor. If a tenant answers the complaint or files an appearance in court, the court conducts a hearing, and a judge issues a decision.
If a landlord is the prevailing party in an eviction lawsuit, the court issues a writ of possession. The writ of possession is a legal document ordering the local sheriff's office to physically remove the holdover tenant and deliver the landlord's rental property back to him. The writ of possession provides the tenant with a minimum number of days, determined by state law, to voluntarily move out or risk a physical ejectment.
Because real estate laws can frequently change, do not use this information as a substitute for legal advice. Seek advice through an attorney licensed to practice law in your state.
- NOLO: How Evictions Work -- What Renters Need to Know
- Texas Eviction: What Happens After a Writ of Possession?
- Orange County, California - Writ of Possession
- Cornell Law School Legal Information Institute. "Tenancy at Sufferance." Accessed Sept. 11, 2020.
- New York State Unified Court System. "Tenant Questions & Answers in Holdover Eviction Cases." Accessed Sept. 11, 2020.
Jill Stimson has worked in various property management positions in Maryland and Delaware. Stimson worked for the top three property management companies in the commercial industry and focuses her career on property building logistics and tenant relationships. She holds a Juris Doctor and a Bachelor of Science in psychology.