You’re a landlord, and you want to evict a tenant. You wonder: what can I do? What is the best way to go about this?
How to evict someone
· If your tenancy is a tenancy at will, you must give the tenant thirty days notice to terminate, in writing.
Oklahoma law defines “tenancy at will” as a tenancy that exists “for an indefinite period of time.” Every tenancy is presumed to be a tenancy at will, unless there is evidence that the tenancy is for a definite period of time, or unless a state statute says it is not a tenancy at will.
· If the term of the tenancy is three months or less, you must give the tenant thirty days notice to terminate, in writing. However, if the lease agreement provides that rent is payable in intervals of less than thirty days, the length of the notice does not need to be greater than the interval between the days of payment.
· If the tenancy is from year to year, then you must give the tenant notice to terminate, in writing, three months before the end of the year.
· If, for a period of three months or longer, your tenant fails to pay rent when rent is due, you must give the tenant ten days notice to terminate, in writing. The tenant may then cure the defect by paying rent within ten days.
· If, for a period of less than three months, your tenant fails to pay rent when rent is due, you must give the tenant you five days notice to terminate, in writing. The tenant may then cure the defect by paying rent within five days.
· You do not need to give the tenant any notice, if the time for the termination of tenancy is specified in the lease agreement, or if the tenant commits waste on the property, or if the tenant remains on the property, without your consent, after the tenancy expires.
You must deliver the notice to the tenant either by:
1. Personally delivering the notice to the tenant, or
2. If you can’t find the tenant, you may personally deliverer the notice to a person over the age of twelve, who resides on the property, or
3. If you can’t find the tenant, or anyone over the age of twelve residing on the property, you may post the notice in a conspicuous place on the property. If you do this, you must also mail the notice, by registered mail, to the tenant’s last known address.
What if your tenant doesn’t leave the property after you give him notice?
You may file a forcible entry and detainer action.
To file a forcible entry and detainer action, go to the court clerk in the county where the property is located. Ask the court clerk to provide you with forms for a forcible entry and detainer action. (In some counties, the court clerk will not assist you with forms, if you are suing for back rent that totals more than $10,000. If the court clerk will not assist you with forms, get a lawyer.)
Fill out the forcible entry and detainer forms, and file them with the court clerk. The court clerk will then issue a summons, and give you a hearing date. By law, the hearing date must be more than five days, and less than ten days, after the clerk issues the summons. The law is designed to help evictions proceed quickly.
After the court clerk issues the summons, you must serve the tenant with notice of the hearing. You may serve the tenant in one of the following ways:
1. Have the summons delivered to the tenant personally, or to someone at least fifteen years old, who resides on the property. A sheriff, deputy sheriff, or licensed process server must deliver the summons.
2. Send the summons to the tenant via certified mail.
3. If it is not possible to either personally deliver the summons to the tenant, or to a person at least fifteen years old residing on the property, or to mail the summons by certified mail, you may serve the tenant by posting the summons in a conspicuous place on the premises. You must post the summons at least five days before trial, and must also mail the summons to the tenant’s last known address by certified mail. However, if you serve the tenant in this fashion, then the court may not order the tenant to pay any back rent; the court may only order that the premises be returned to you, and the court may not order anything else. (But, if the tenant appears for trial after being served in this fashion, the court may then order the tenant to pay back rent, as well.)
When you go to trial
At trial, you have the burden of proving that you have the legal right to evict the tenant. If you can prove that you have the right to evict, then the judge should sign a writ of execution, which will order a sheriff to forcible remove the tenant from the property. The judge may also order the tenant to pay back rent. If you can’t prove that you have the right to evict, then, you may not receive any relief at all, and you also won’t be able to keep the tenant off of your property.
Two important items you should know about going to trial:
1. You may either represent yourself, or hire an attorney. If you are suing for back rent that is less than $10,000 (or you’re not suing for back rent at all) then the case may be heard in small claims court. You don’t need an attorney for small claims court. If you are suing for back rent for more than $10,000, then the judge may assign only the eviction portion of the case to small claims court, and retain the back rent portion of the case in district court. However, if you’re suing for more than $10,000, the judge may keep the entire case in district court. Also, even if you’re suing for back rent that is less than $10,000 (or aren’t suing for back rent at all) then, the judge may transfer the entire case to district court, if either party asks for the case to be transferred to district court. If any part of the case is in district court, you will need an attorney to handle the district court portion.
2. Either you, or the tenant, have the right to demand a jury trial. If neither of you demand a jury trial, then, the judge will try the case and decide the case himself.
After the judge signs the writ of execution
If the judge signs the writ of execution, take the writ to the sheriff. The sheriff then has the power to remove the tenant from the property. You will then be in possession of the property again. If the tenant remains on the property, or comes back to the property, the tenant will be guilty of trespassing, and may be arrested.
After the judge signs the writ, the tenant may prevent the sheriff from removing him, in the following ways:
1. If the tenant claimed, at trial, that you failed to maintain the property, and that he thought he could deduct the cost of the repairs from the rent, and the judge rules that the tenant didn’t actually have the right to deduct the cost of the repairs from the rent, then the tenant can prevent a writ of execution, if he pays the rent within 72 hours of the trial.
2. The tenant may prevent the sheriff from removing him, if, within two days of the trial, he files an appeal in the state supreme court, and posts a bond with the court clerk. If the tenant posts a bond, the tenant may remain on the property, but he will have to pay rent to the court clerk while the appeal is pending. If the tenant appeals, it may take several years before the court renders a decision. For information on how the appeals process works, click on my appellate law page.