Forcible Entry / Detainer
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FORCIBLE ENTRY / DETAINER - An offence committed by unlawfully and
violently taking or keeping possession of lands and tenements, with menaces, force
and arms, and without the authority of law.
The proceedings in cases of forcible entry or detainer are regulated by statute in the
several states. The offence is generally punished by indictment. A forcible entry and
a forcible detainer are distinct offences.
The civil law punished even the owner of an estate, in proportion to the violence
used, when he forcibly took possession of it.
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INSTRUCTIONS FOR FILING A FORCIBLE DETAINER
NOTICE TO VACATE:
By stature, the landlord must give the tenant written notice of the eviction suit before filing a suit for Forcible
Detainer. Where written notices are required in the following Causes of action, except for attorney's fees
and costs of suit, the notice may by personal delivery to the tenant or any person residing at the premises
who is 16 years of age or older or personal delivery to the premises by affixing the notice to the inside of
the main entry door. Notice may also be by regular or certified mail, return receipt requested, to the
premises in question.
If your cause of action (the reason you are filing) is:
1.DEFAULTS OF AN ORAL OR WRITTEN LEASE, i.e., Non-payment of Rent, Dog on
Premises, etc.:
3 day written notice is required - can be as short as 1 day if that shorter period is provided for in a
written lease. SOME NOTICE IS REQUIRED.
2.PERIODIC TENANCIES (Month to Month, Week to Week, etc.) WHERE LANDLORD
DESIRES POSSESSION. (This would also be in a case where the tenant was holding over after
the expiration of the primary term of the lease):
3 days written notice is required - can by shortened or lengthened by written lease or agreement.
SOME NOTICE IS REQUIRED. PERIODIC TENANCIES MAY REQUIRE A NOTICE TO
TERMINATE THE LEASE OR AGREEMENT.
3.TENANT AT WILL OR TENANT AT SUFFERANCE:
3 days written notice is required - can by shortened or lengthened by written lease or agreement.
SOME NOTICE IS REQUIRED.
4.TENANT AFTER TAX FORECLOSURE SALE OR TRUSTEE'S FORECLOSURE SALE:
If a tenant timely pays rent and is not otherwise in default under the tenant's lease after foreclosure,
the purchaser must give a residential tenant of the building at least 30 days written notice to vacate if
the purchaser chooses not to continue the lease. The tenant is considered to timely pay the rent if
during the month of the foreclosure sale, the tenant pays the rent for that month to the landlord
before receiving any notice that a foreclosure sale is rescheduled during the month or pays the rent
for that month to the foreclosing lienholder or the purchaser that requests payment.
5.FORCIBLE ENTRY AND DETAINER SUITS (Where a person enters the property without legal
authority or by force and refuses to surrender possession on demand):
Oral or written notice to vacate immediately or by a specified deadline.
6.OCCUPANT IS A TENANT OF A PERSON WHO ACQUIRED POSSESSION BY
FORCIBLE ENTRY:
3 days written notice to vacate.
7.ATTORNEY'S FEES AND COSTS OF SUIT:
10 days notice by registered or certified mail, return receipt requested. The notice period can by
shortened or waived by a written lease. If the lease provides for attorney's fees, the notice provision
in the lease controls. If the lease is silent as to attorney's fees, a 10-day notice is required. If the
landlord provides the tenant notice for attorney's fees or if a written lease entitles the landlord or the
tenant to recover attorney's fees, the prevailing tenant is entitled to recover attorney's fees from the
landlord. A prevailing party is entitled to recover all costs of court.
VENUE:
Cases of Forcible Detainer and Forcible Entry and Detainer must by filed in the precinct of the county
where all of party of the leased premises are located.
COSTS:
The fees for filing on one defendant (i.e., John Doe and all occupants) are $65.00 - $15.00 - Justice of the
Peace filing fee and $50.00 - Constable's service fee.) An additional $50.00 service fee is needed for each
additional defendant named in your suit.
CITATION:
A citation (notice to the defendant) is prepared by our office and sent with a copy of your petition to the
Constable's office for service on the defendant. When the citation is prepared, it is given to the Constable
to serve. There will be a hearing on the 7th day from the date of service at the court where you filed the
case. BE SURE TO CALL THE CLERK TO ASCERTAIN THE HEARING DATE TWO - THREE
(2-3) DAYS AFTER FILING THE CASE. It is the responsibility of the Plaintiff to stay in touch with the
Court to determine your hearing date. FAILURE TO DO SO MAY RESULT IN YOUR CASE BEING
DISMISSED FOR WANT OF PROSECUTION.
COURT:
At the time of the hearing to determine possession of the leased premises, you should bring any rent
receipts, rent ledgers, lease, etc., you may have to support your case. Witnesses should also be brought to
this hearing.
TRIAL BY JURY:
You may request a trial by jury upon payment of a $5.00 jury fee no later than 5 days after the
citation is served upon the defendant.
WHO MAY REPRESENT THE PLAINTIFF:
1.Non-payment of rent or the tenant is holding over after the rental period, the owner, agent
(manager) or an attorney may represent the plaintiff.
2.ANY OTHER REASON, for example, Defaults on Executory Contracts, Mortgage
Foreclosures, Forcible Entry and Detainer Suits (tenant enters by force or without legal
authority), Defaults on Lease (dog on premises, too many people living on the premises,
public indecency convictions, etc.) ONLY THE OWNER OF THE PREMISES OR AN
ATTORNEY FOR THE OWNER MAY REPRESENT THE PLAINTIFF IN A TRIAL
BY THE JUDGE OR JURY. IF THE DEFENDANT IN YOUR SUIT DOES NOT
APPEAR AT TRIAL, the owner of the premises, an agent (manager) or an attorney for the
owner may appear for the plaintiff and secure a default judgment.
AFTER JUDGMENT:
IF you are awarded a judgment for possession of the premises and IF the defendant does not make a
Motion to Set Aside Default Judgment within 5 days from the date the judgment is signed OR appeal the
case within 5 days from the date the judgment is signed, your remedy to gain possession of the premises is
a WRIT OF POSSESSION.
WRIT OF POSSESSION:
On the 6th day after a judgment for possession is awarded, you, as plaintiff, may request a
Writ of Possession. A Writ of Possession allows the Constable to oversee the move-out of
the defendant(s) out of the leased premises, and see that no breach of peace is violated. The
fee for filing a Writ of Possession is $65.00 ($5.00 - Justice of the Peace filing fee and
$60.00 - Constable's service fee). You may call the Constable's office for his procedures on
executing a Writ of Possession.
ADDITIONAL INFORMATION:
At the time you file your Forcible Detainer suit, you may also file for the back rent in the maximum amount
of $5,000.00.
If you have any additional questions please call the Civil Department of the appropriate Justice Court listed
in this brochure. |
