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October 16, 2007

Eviction Procedures Allow Tenants Inadequate Response Times

In most states, eviction laws are designed to remove the tenant as soon as possible. Expediting evictions sometimes makes sense--who has not seen " Pacific Heights" and Michael Keaton's portrayal of a tenant from hell? But in many other cases the process is so rushed that the tenant is unable to marshal an adequate defense or find new shelter. For the most part the timing of the eviction procedures is inflexible. In California, for instance, if a tenant is late on even one rent payment, the landlord can serve a notice requiring the tenant to pay the rent within three days or get out. Even if the tenant comes up with the rent on the 4th day, the landlord is entitled to obtain an eviction order.

Unlike the usual 30 days that people have to answer other types of court petitions, tenants must respond to an eviction petition within the given five days. If a tenant fails to meet this deadline--which is frequently the case--the landlord may obtain a judgment and an eviction order without giving the tenant a chance to be heard. A few days after that, a deputy sheriff shows up at the tenant's door and orders the tenant to be gone within five days. After that, the sheriff will physically put the tenant out in the street.

With a few tweaks to the law, many more tenants could either remain in their dwelling, assert their legal remedies, or at least have more time to find new housing. For example, the 3-day notice to pay rent or quit, and the 5-day period to respond to an eviction complaint, both include weekends and holidays. This means that if the tenant is served with papers on a Friday afternoon (which not surprisingly is very common), he or she will effectively only have three business days (Monday through Wednesday) to fashion the appropriate response. If the three and five-day notice periods excluded weekends and holidays, the tenant would at least have five business days to get their response in order. And if the landlord were required to include with the eviction petition a blank form for tenants to complete and file--so they would have their day in court if they couldn't find legal assistance--so much the better.

Even assuming that the tenant ultimately loses in court and is forced to leave, the law should authorize judicial flexibility regarding the ultimate move-out date. For example, if the tenant is a family with two or more children, the court might allow 15 or 30 days for the tenant to move out--instead of the five days that currently applies to everyone regardless of their circumstances.

For more about the rights of tenants during an eviction, check out Every Tenant's Legal Guide, by Janet Portman & Marcia Stewart (Nolo).