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Service of Process in Evictions (Step I)

Eviction Service

Prior to the Covid-19 pandemic, the eviction process was already difficult. Adding the pandemic and a new eviction moratorium every 30 days has made the process even more challenging.

Pandemic aside, the main culprit giving Landlords and attorneys headaches will always be the process of service. Before the court will hear an eviction case, Landlords must properly serve the defendant (Tenant) with notice that an eviction suit has been filed against them. This means as soon as the Judge calls an eviction case in court, they will ask, “Is there service?” At this time, a Landlord better have proof of service ready to show the Judge or come back another day.

Well, how does a Landlord show the Judge there was proper service? We have laid out a three-step guide on how to properly serve a Tenant in an eviction proceeding.

In Step I we will discuss the first step to serving the Tenant: Notice to Terminate Tenancy. This is the first vital step in Landlords asserting their rights to regain possession and/or rent owed.  A Landlord will not be able to move on to the second step without first serving the Tenant with the proper termination notice and waiting the appropriate time. In Step II we will discuss serving the Tenant with a summons to appear at trial. Without completing this step, a Landlord may never have their eviction lawsuit heard by a judge. PRO TIP: A Landlord may not simply hand the Tenant the summons, service will be deemed insufficient. And finally, in Step III we will discuss what to do when the Tenant is avoiding service and a Landlord has exhausted all your resources.

Step One:  Serve Notice to Terminate Tenancy

This step begins when the Landlord has come to the decision that it is time to evict a Tenant. Before filing a suit with the County Clerk, the Landlord must serve the Tenant a written Notice to Terminate Tenancy demanding all rents be paid or cease the offending activity before starting an eviction lawsuit.

The Notice to Terminate Tenancy must contain three items: 1) the address of the leased premises; 2) the reason for the termination of the lease (failure to pay rent or violation of a lease provision); and 3) when the lease will terminate after service of the termination notice. Termination notice periods vary based upon the type of lease and the reason for the termination. This may be a period of 5, 10, or 30 days. In some cases, the Tenant may resolve the issue(s) before the expiration of the termination notice which will end the Landlord’s rights to file an eviction complaint. PRO TIP: Check out our Evictions 101 blog to determine which Notice to Terminate Tenancy relates to you.

Another important piece of serving the Notice to Terminate Tenancy is Proof of Service. After the Landlord has served the Tenant with a Notice to Terminate, the Landlord must fill out a Proof of Service document and have it notarized. The Court will need to see a copy of the Notice to Terminate with the completed Proof of Service document.

If and only if the Tenant fails to comply with the Notice to Terminate Tenancy and the specified time has elapsed, then may the Landlord take legal action against the Tenant by filing an eviction complaint for possession or possession and owed rent with the County Clerk. If the Landlord files the complaint before the specified time has expired or without Proof of Service the court will not hear the matter. Therefore, Landlords must make sure they are following the dates set on the Notice to Terminate and obtain a notarized copy of the Proof of Service document.  

Must a Landlord use a Landlord/Tenant Attorney?

Attorneys are helpful to Landlords because the procedures for filing for eviction cases can have several hurdles that may cause delay or dismissal of a case. This may cause the Landlord more money and time. 

From serving the initial eviction notice through obtaining the order for possession, an experienced landlord/tenant law attorney can assist through all phases of the eviction process. While some landlords may want to pursue legal action on their own, few understand the nuances of document preparation and filing that is necessary to navigate the court system and see the trial through without delay or dismissal.

An experienced landlord/tenant attorney will be able to guide landlords through the varying logistics of their county and advise them of what to expect and how to prepare for their eviction lawsuit. If you are a Landlord and have an eviction issue, we can help. Contact Nowlin Scott Law Firm today at 312-715-8362 to request a case evaluation.

To learn more, read Step II and Step III.