Evictions

Evictions - An Overview

Eviction is the legal procedure used when a landlord wants a tenant to move out of an apartment. The eviction process protects the rights of both parties. A tenant is not “evicted” until the entire court process is completed, a judge issues an order, and the order is delivered to the tenant.

Notice: A tenant can be evicted at any time of year, even in the winter, and even if the tenant has children or a disability, provided the tenant has been given a proper notice and legal process.

If a landlord wants to evict a tenant, he or she must first give the tenant an eviction notice (also known as a notice to vacate or a notice to quit). Proper notice must be written, give the reason for the eviction, include the termination date, and be properly furnished to the tenant a specific period of time in advance. The amount of advance notice the tenant receives depends on the reason for the eviction.

If the tenant hasn’t moved by the termination date, the landlord must sue the tenant in court to get him or her out. It ordinarily takes at least two months from the start of the eviction to get a judge’s order saying the tenant has to leave, and it can take much longer.

Under no circumstances may a landlord remove a tenant who is still living in an apartment without first getting a judge’s order. The judge’s order (called a writ of possession) directs the sheriff to put the landlord back into possession of the rental unit.

Termination Notice for Nonpayment of Rent
(There were some changes to Vermont’s law effective July 1, 2008 that are now reflected in this section.)

A landlord may, with 14 days written notice, terminate a tenancy for non-payment of rent any time after the tenant falls behind in the rent.

In an eviction process for nonpayment of rent the landlord must begin by providing the tenant with a written termination notice giving the tenant at least 14 days to pay in full or to leave. The notice must specifically state how much rent is due. The tenancy will continue if the tenant pays all rent due through the end of the rental period in which the tenant pays. If the date given in the termination notice for the tenant to leave passes, and the tenant has not paid the required amount of rent, the landlord can continue the eviction process for nonpayment of rent by taking the next step, which is having a legal document called a summons and complaint served and the tenant must respond to the summons and complaint.

Termination of Tenancy with Sale of Building

Tenants are entitled to at least 30 days written notice to vacate from a current landlord who is selling the building, if the tenants are renting month to month. A landlord who recently bought a building is not entitled to this shortened notice requirement. Only the landlord who has contracted to sell a building can give 30 days notice to vacate; once the new owner takes over, he or she has to give the tenant normal “No Cause” eviction notice if he or she wants the tenant out due to no fault of the tenant (see below, “For No Cause”). However, if there is a written rental agreement, it is binding and will be transferred to the new owner.

Eviction for Breach of the Rental Agreement

If the tenant violates the lease or the landlord/ tenant law, the landlord may terminate the tenancy by giving the tenant at least 30 days written notice. The notice must specifically state what actions of the tenant are the cause(s) for the eviction.

(The following is a new category for termination notice based on criminal activity that became effective July 1, 2008.)   If a termination is based on “…criminal activity, illegal drug activity, or acts of violence any of which threaten the health or safety of other residents…” then the notice of termination can be 14 days. (Vermont Statutes, Title 9, § 4467 (b) (2))

Termination of Tenancy for “No Cause”

Under Vermont state law if a landlord is terminating a tenancy for none of the reasons explained above or for no given reason (called a termination for “no cause” in legal language), and the tenant is renting by the month, the tenant is entitled to at least 60 days written notice, or 21 days written notice if renting by the week. Tenants who have resided continuously in the same premises for more than two years, and who rent by the month, are entitled to a ninety (90) day notice for a termination for no cause. However, if there is a written rental agreement for a set period of time, a tenancy may not be terminated for no cause before the end of the lease period unless the lease specifically allows it. (See section below on Termination of Tenancy for “No Cause” Under Terms of a Written Rental Agreement.)

If a tenant receives a no cause termination notice and decides to move out earlier, he or she must still give the landlord a full rental payment period notice of moving. (See: Chapter 4, “Moving Out”)

Termination for “No Cause” In Burlington: 

In Burlington if there is no written rental agreement, a tenancy cannot be terminated for no cause without ninety (90) days notice if the tenancy has lasted for under two years or one hundred twenty (120) days if the tenancy has lasted over two years. In Burlington, if there is a written rental agreement, a notice for termination for no cause would simply have to follow the state law for termination for no cause under terms of a written rental agreement. (See below.)

Termination of Tenancy for “No Cause” Under Terms of a Written Rental Agreement

For all of Vermont, including Burlington: If there is a written rental agreement the lease may state that the landlord or the tenant can terminate the tenancy for no cause or for any reason on which the parties agree. Such a written provision may reduce the notice period required for a no cause termination to less than (60) days, but under no circumstances may the written agreement allow the landlord to give a tenant less than thirty (30) days notice of termination for no cause if rent is payable monthly, or seven (7) days if payable weekly.

If a landlord intends to terminate a tenancy for no cause at the end of a written lease that defines a fixed time period (e.g. a one year lease) and the tenant pays rent monthly, the landlord needs to give the tenant a termination notice of (60) days if the tenant has resided continuously in the same premises for more than two years or (30) days if the tenant has resided in the apartment less than two years. 

Termination of Tenancy If Renting In the Landlord’s Home

If the tenant rents one or more rooms in the landlord’s personal residence that includes the shared use of any of the common living spaces, such as the living room, kitchen or bathroom, then either party may terminate the tenancy by giving written notice of at least 15 days if rent is payable monthly and at least seven days if rent is payable weekly. At this point it is not clear what effect this law will have in situations where there is a written lease that does not allow for early termination, or that has a different time frame for termination.

Eviction of Farm Workers

Farm workers who receive housing as a benefit of their employment may not just be thrown out of their homes if they lose their job. They are protected by landlord/ tenant law just as any other tenant, and if the farmer wants the farm worker to leave the housing the farmer must follow proper legal procedures. The law does, however, allow the farmer a speeded up process to evict the farm worker, if the farmer can show hardship.

To evict the farm worker, the farmer must have the worker served with a notice of termination of tenancy at the same time as a summons and complaint is served. The court will schedule a hearing not less than 10 days after the worker is served. At the hearing, if the farmer can show that he or she will suffer actual hardship if the worker does not leave, the judge will issue an order giving the worker from between five and 30 days to move out. If the judge decides that the farmer has not proven actual hardship, the farmer will then have to start regular eviction proceedings to evict the worker, just as with any other tenant.
A farmer who wants to evict a worker should contact an attorney in order to properly comply with the requirements of this law, and can also contact the Vermont Farm Bureau at (802) 434-5646 for general advice on farmers’ rights and responsibilities.

Farm workers with questions should call their local Legal Aid office or Vermont Tenants They can also contact the CVCAC Farm Worker Program (a statewide program) at 1-800-639-8710 for general information and assistance. If a farmer tries to throw a worker out without getting a court order, the worker should also contact the local police immediately, as it is an illegal eviction.  In Vermont state law, see: (V.S.A., TITLE 9, Chapter 137, § 4469. Termination of occupancy of farm employee housing)

Summary of Notice Periods for Termination of Tenancy

Nonpayment of Rent - 14 day written notice.
Breach of the Rental Agreement - 30 day written notice.
Criminal/Drug activity – 14 day written notice.

For No Cause (only for a month-to-month or week-to-week tenancy) - 60 day written notice if renting monthly, or 21 days if renting weekly. 90 day written notice if the tenant has resided in the premises continuously for over two years and rents monthly.

In Burlington: For “No Cause”, WITH NO WRITTEN LEASE - 90 day written notice if tenant has resided in the home for less than two years. 120 day written notice if tenant has resided in the home for over two years.

Under the Terms of a Written Rental Agreement -    Whatever time period the parties agree on in the lease agreement, but no less than 30 days if renting monthly, and no less than 7 days if renting weekly. No less than 60 days if renting monthly and the tenant has resided in the premises continuously for over two years.
     Renting in the Landlord’s Home - 15 days written notice from either party.
     Sale of the Building – (This only applies if there is no written lease or if a written lease specifically allows for early termination of tenancy.) - 30 day written notice from the person selling the building (only if a contract to sell has been signed), or - 60 day written notice from the buyer after purchase of the building, or 90 days if the tenant has resided in the premises continuously for over two years. (Same as regular termination of tenancy for no cause.)

If the tenant does not leave by the termination date, the landlord must get a court order (called a “Writ of Possession”) before the tenant can be removed.

Going To Court

If the tenant hasn’t moved by the termination date in the notice, the landlord can sue the tenant in the superior court of the county where the property is located. The landlord must have the court papers (called a summons and complaint) delivered to the tenant by a sheriff or constable. A tenant should seek legal advice as soon as he or she receives the “summons and complaint.” Once the tenant is served with a summons and complaint, he or she must give a written response to the court within 20 days of being served. If a written response is not filed, a judge can issue an order giving the landlord the right to take possession of the apartment (a writ of possession) shortly after the sheriff serves the order to the tenant.  Just showing up in court without filing a written answer will not necessarily prevent a default judgment unless the tenant shows up in court for a hearing on payment of rent into court before a judge has granted the default judgment to the landlord, in which case the tenant’s appearance in court will give the tenant ten days from the date of the hearing in which to file an answer.  This last detail was a Vermont law change that became effective July 1, 2008.

If an answer is filed with the court, the case will eventually be scheduled for trial, unless the tenant and landlord work out a deal beforehand. Such a deal may provide, for example, that the tenant will move out on a certain day, in exchange for the landlord dropping some or all of his or her claim for back rent. Any settlement should be put in writing with each party getting a copy, and another copy should be filed with the court clerk.

The landlord may at any time ask the judge to order the tenant to pay the rent into a court escrow account while waiting for trial on the landlord’s right to take possession of the apartment. Law changes effective as of July 1, 2008 state that the order to pay rent into court includes all rent past due as of the date the landlord filed the complaint with the court or from the date the tenant was served the summons and complaint, whichever comes first.  The tenant has the right to argue that the full rent should not be paid into court if the building is not in compliance with habitability laws. If the judge orders the tenant to make rent escrow payments and the tenant fails to pay as ordered, the judge will issue a judgment in favor of the landlord along with an order called a “writ of possession.” This will give the landlord the right to take possession of the apartment not less than ten business days after the judgment. Since the tenant has the right to argue against payment into court, this is another reason why the tenant should seek legal advice as soon as she or he receives a summons and complaint or other court papers.

If the tenant pays rent into court, the case will eventually be scheduled for trial. At the trial, both the tenant and the landlord will have a chance to ask questions of each other and all witnesses, and argue their cases to a judge or jury. After the judge has listened to all the evidence and arguments by both sides, she or he will make a decision. If the judge finds in favor of the landlord the judgment and a writ of possession will be issued on that same date. Legal changes made in 2008 state that the judgment and the writ of possession will be issued at the same time and will allow the tenant ten business days to move out before a sheriff can return possession of the property to the landlord. In some cases, the court may decide that the tenant has the right to stay and/ or that the landlord owes the tenant some money. If this happens, the court will deny the landlord’s request that the tenant be evicted and issue an order for the benefit of the tenant.

A tenant can stop an eviction at any time up until the landlord is put in possession of the property by paying all rent due, interest and all court costs and attorney fees of the landlord.  This however can only be done once in any 12 month period.

Even without a lease, if a tenant loses in his or her defense against an eviction, a landlord may be entitled to court costs, sheriff’s fees and attorneys fees if the tenant

  • Has not complied with his or her responsibilities under building, housing and health regulations;
  • Has disturbed other tenants’ peaceful enjoyment of the premises;
  • Has deliberately and negligently cause destruction of the premises; or
  • Has vacated the premises without giving proper notice.

In Vermont state law, see: (V.S.A., TITLE 9, Chapter 137, § 4456. Tenant obligations; use and maintenance of dwelling unit)

If the landlord loses the case, even without a lease, the tenant may be able to recover attorneys’ fees if the landlord:

  • Has violated the warranty of habitability; [9 V.S.A., Chapter 137, § 4458(a)(b)]
  • Has violated the Consumer Fraud Act; [9 V.S.A. Chapter 63: CONSUMER FRAUD, §§ 2451-2462.]
  • Has failed to return the security deposit or a statement of security deposit within fourteen (14) days; [9 V.S.A., Chapter 137, § 4461(e)]
  • Has engaged in an illegal eviction (a self-help eviction); [9 V.S.A., Chapter 137, § 4464(b)]
  • Has engaged in retaliatory conduct which is prohibited; [9 V.S.A., Chapter 137 § 4465(b)]
  • Has discriminated in the rental of housing; [9 V.S.A., Chapter 139: DISCRIMINATION; ... RENTAL...§ 4506. Enforcement; civil action (b)]
  • Has converted apartments to condominiums without complying with the Condominium Ownership Act.  In Vermont state law, see (Title 27: Property Chapter 15: CONDOMINIUM OWNERSHIP ACT, § 1331, Definitions, and § 1339. Violations)

Generally a landlord can get attorney fees for non-payment of rent if it is included in the lease.

If the tenant loses the case, the court will issue to the landlord a Writ of Possession. If the tenant does not move by the date set by the judge, the Writ of Possession directs the sheriff to put the landlord back into possession of the unit. If necessary the sheriff could physically remove the tenant, and the landlord would be allowed to change the locks. This could occur no sooner than five business days from the day the sheriff serves the Writ of Possession on the tenant.

Illegal Evictions

(Such actions are sometimes called “self help” evictions, “constructive” evictions, or simply illegal harassment.)

It is illegal for a landlord to:

     Turn off the heat, electricity, or other utilities except for temporary interruptions for emergency repairs.
     Padlock the door to an apartment (without a court order) so the tenant cannot get in.
     Move a tenant’s belongings out of an apartment without a court order.
     Confiscate or deny a tenant access to his or her belongings due to back rent owed or any other reason.(The landlord may, however, require the tenant to pay reasonable moving and storage costs if the landlord has lawfully removed the tenant’s property.)

Remedies for Illegal Evictions
     If the landlord has taken any of the above illegal actions a tenant should:
     Notify the police at once if the landlord is in the act of committing an illegal eviction.
     If utilities have been shut off, notify the utility company and the town health officer or housing inspector. (See, “Enforcement of Housing Codes”)
     If the landlord has illegally locked the tenant out, the tenant can take necessary steps to get back in; this may include reasonable use of the least destructive force necessary to gain reentry into the apartment. Such action should be taken only if the tenant is unable to convince the landlord to let him or her back in and access to the unit and/or personal possessions is relatively urgent. (The tenant should first notify the police of his or her intention to do this to avoid any misunderstanding.)
     Contact an attorney to explore possibly bringing an action for injunctive relief, damages, costs and attorney’s fees.
 

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