If you’re a commercial real estate or residential property owner, there may come a time when you need to remove someone from your property – this is where ejectment actions and evictions come in.
But what’s the difference between these two terms?
In this blog, we’ll dive deep and discuss them in-depth, so you know what to do in an unfortunate scenario.
1. What is ejectment action?
An ejectment action is a common-law term for a civil action to recover the possession of or title to land.
Unlike an eviction, there is no lease or landlord/tenant relationship with the person on the land.
Having said that, the person that the owner of the land wants to leave claims to have some sort of right to the property.
Ejectments address occupants who are neither the owner of the property nor a tenant, but who have an interest in the property (such as a holder of a land contract).
Regardless of whether this claim is frivolous or legitimate, the presence of the claim often complicates things for the landlord.
2. How do you bring an ejectment action?
To bring an ejectment action, follow these steps:
Get a real-estate lawyer to advise you throughout the process.
Establish that you are the true and rightful owner of the property.
File the suit in circuit court.
You will be the “plaintiff” and the individual overstaying on your property will be the “defendant.”
File a complaint stating that there is a person overstaying, the Plaintiff is the rightful owner and that the party should be removed.
Wait for the Defendant to respond.
The Defendant will have a specific amount of time to respond depending on the jurisdiction.
If they do not respond, then the Plaintiff will be awarded a default judgment, which gives them what they ask for automatically.
If the Plaintiff receives a default judgment, then the sheriff will come to the premises and remove the Defendent from the property.
If the Defendant files an answer, then a hearing will be set so the judge can listen to both sides.
3. When are ejectment actions filed?
Here are some examples where ejectment actions have been filed:
A boyfriend/girlfriend stays on the property after the couple breaks up
A family member stays on a property devised from a will that they claim they have a right to
A family member overstays their welcome on a property
A friend overstays their welcome on a property
A child/parent overstays their welcome on a property
A purchaser of land through owner financing defaults on the land contract
4. What happens after the verdict is entered on an ejectment action?
In some states, such as Florida, the Defendant can file within approximately 20 days of the verdict (if he/she did not file for appeal) for what is known as a betterment.
In this stage of the process, if the Defendant made any real improvements to the property, they could exercise their legal right to sue to be reimbursed for those improvements.
5. What is eviction?
Most people are familiar with the concept of eviction.
Eviction is the removal of a tenant from rental property by the landlord.
In some jurisdictions, it can also involve the removal of persons from premises that were foreclosed by a mortgage.
That said, it often requires a written lease, mortgage, and/or some sort of tenant-landlord relationship.
6. What’s the difference between an ejectment action and an eviction?
During the eviction process, a landlord wants to force a tenant to leave the property.
In an ejectment action, there is no landlord or tenant.
There is also no lease, although the person being asked to leave the property has some rights to the property (either frivolous or legitimate).
Unlike cases of eviction, ejectments do not give landlords the rights to the summary procedure that evictions are allowed in some states, which means they can take a longer time to resolve.
Having said this, in other states or circumstances, an ejectment action may be faster than an eviction.
Be sure to seek legal advice from a local attorney about the specifics of your situation.
7. What are the steps to evict a tenant?
Below are the general steps in a legal eviction.
Just note that the exact legal process varies from state to state.
Be sure to speak with an attorney in your state to make sure you understand the process.
Step 1: Tenant receives a written notice to vacate
Why does a tenant receive a written notice?
1. Failing to pay rent: If you fail to pay your rent, your landlord must give you (the tenant) a written notice before they can legally evict you.
The notice must be in writing, and it must give you the period under which you must pay rent or leave the premises (vacate).
This period of time does not include weekends, holidays, or the day the notice is given.
If you offer to pay the full rent within the time, your landlord must take it.
That said, if the amount is less than is owed, then the landlord doesn’t need to accept the money.
2. Breaking terms in the lease: If you break the rules of your written lease, then your landlord may evict you.
Common reasons that landlords evict tenants include being too loud, being too dirty, parking in incorrect spots, or letting people/pets onto the property when they’re not allowed.
3. Ending a lease: If a landlord and tenant do not have a written lease, then the tenant can end it at any time, the same is true if a written lease does not include a specific time frame.
Similarly, the tenant is able to end the lease for any reason and can do so without giving the landlord proper notice.
Step 2: Tenant receives a summons and complaint
If a tenant refuses to leave, landlords may sue.
As mentioned above, tenants will receive a notice to vacate, but there is still often a chance to fix the problem.
Usually, there’s a 3-day to 7-day notice that tenants must do something to fix the situation (like pay rent).
If the tenant does not take the correct actions to cure the problem, then the landlord can sue.
The landlord will pay a fee and file a complaint with the Clerk of Court to begin a lawsuit.
The tenant will then get a copy of the summons and complaint about eviction.
Step 3: Tenant responds to the complaint
After you are served a complaint as a tenant, you should contact a lawyer at once.
Don’t wait even a few days because you won’t have time to prepare a defense!
As the tenant, you should have roughly 5 days to answer the complaint, and the counting begins on the day after the tenant was served.
It does not include weekends and legal holidays.
File an “answer” with the Clerk of Court in writing and listing your defenses about why you shouldn’t be evicted.
If you owe rent, then you should also give the amount listed in the complaint to the court.
If one of your defenses is that you already paid rent to your landlord, then you do not have to do this.
Keep in mind that your landlord can get a default judgment against you if you do not answer the complaint, so you want to make sure you file an answer shortly after you receive it.
Note: If you disagree with your landlord about how much money you owe, then you can file a motion to determine the amount of rent to be paid when filing your answer.
The motion should state why you think the amount should be different and ask the judge to decide the right amount.
Be sure to attach any proof (receipts, etc.) to the motion.
The judge may schedule a hearing to decide the correct amount.
Even when filing this motion, you should still deposit the amount you admit to owing to the court.
Step 4: Tenant and landlord goes to court
In this step, the tenant and landlord must go to court for the hearing and then the judgment for possession.
Either the landlord or the tenant can set the hearing date after the complaint and answer have been filed.
No date is set if the tenant does not answer the complaint or deposit the correct amount of money with the court.
Additionally, no date is set if the land gets a default judgment.
The judge will schedule a hearing if the tenant and landlord do not.
After the hearing is scheduled, the tenant and landlord will be notified of where and when it will take place.
Each party gets to go and present their case before the judge.
Typically, this is the only court date that you’ll have.
It’s important to bring anything you want the court to consider.
This may include your lease, photographs, or receipts.
If you want the judge to hear and consider what another individual has to say in this case, then the person must come with you to court.
If the tenant doesn’t attend the hearing, then the landlord wins automatically.
If the tenant loses the case, then the judge will give the landlord a Judgment for Possession.
Keep in mind that the judge can also order the person who loses to pay the court costs and attorney’s fees of the person who wins.
Step 5: Eviction occurs
If the landlord wins and gets a judgment for possession, the court will issue a final 24- hour notice.
This notice is called the Writ of Possession, and it is given to the sheriff.
The sheriff then posts the notice on the tenant’s rental home.
After that, the tenant has to move out 24 hours following this notice being posted.
If the tenant does not move, the sheriff or landlord can forcibly evict the tenant and padlock the door.
The padlock may be placed with or without the belongings inside.
Finally, the landlord may impose a lien on the belongings up to the amount of rent that’s due.
8. What must take place before an eviction?
Before a tenant can be evicted by a landlord, all of the following must take place.
The tenant must receive a written notice to vacate the premises.
The tenant must be served with legal paperwork.
This includes a summons and complaint.
This paperwork must be delivered by a sheriff or other authorized process server.
The tenant must be allowed to respond.
The court can grant or deny the eviction.
A Writ of Possession is posted if the court grants the eviction.
9. What can landlords not do when evicting a tenant?
There are some ways that landlords cannot make you try to move out.
Shutting off your utilities (water, gas, electric)
Changing or removing the locks on your home
Removing doors or windows
Taking your personal property from your home
If any of these occur, call the police or your lawyer.
Often, landlords who use illegal eviction methods will face penalties and may even have to pay your rent.
In order for this to happen, you’ll have to take your landlord to court to win “damages.”
The court can also order your landlord to pay your attorney’s fees if you win.
Just note that the laws vary from state to state, so consult with a local attorney if you believe you have been illegally evicted.
10. Is eviction or ejectment the best way to remove an unwanted individual from my property?
Above, we mentioned the fact that in some states ejectment actions are often more difficult to win in court than eviction cases.
They can also take a lot longer to resolve.
Does this mean you should only ever try to evict someone?
The simple answer is no.
The law regarding possession is not as clear as you may think, and it’s always wise to consult an attorney who is experienced in real estate law before you set out on removing an occupant from your land.
11. Has COVID-19 increased the number of ejectment actions?
Believe it or not, there has been a rise in ejectment actions during the COVID-19 pandemic.
The courts are still reopening, and there’s a backlog of landlord-tenant cases that remain in the system.
There are also new cases that will be entering the system after the eviction moratorium has ended.
The combination of the old cases and the new cases will be difficult for the landlord-tenant court to manage.
Some professionals have recommended that practitioners consider ejectment actions to advance their clients’ rights.
We can’t recommend for or against this.
Consult a real estate lawyer if you think this is an option for you!
If you’ve ever rented an apartment, you’re probably familiar with the concept of eviction, its causes, and the outcome if you’re brought to court.
That said, not as many people are familiar with ejectment action.
While similar, there are some distinct differences.
If you’re a landowner looking to remove someone from your land, it’s worth doing research to see if this is an option in your specific scenario.
Do you have any questions?
Let us know in the comments.
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Disclaimer: we are not lawyers, accountants or financial advisors and the information in this article is for informational purposes only. This article is based on our own research and experience and we do our best to keep it accurate and up-to-date, but it may contain errors. Please be sure to consult a legal or financial professional before making any investment decisions.