Lesson 2
Choosing and using the court
CHOOSING THE CORRECT COURT
There are a number of courts available to litigants in every state. Your county or parish will likely have a PROBATE COURT and at least one CIRCUIT COURT as well as at least one DISTRICT COURT and SMALL CLAIMS COURT. It may also contain Federal courts such as the FEDERAL DISTRICT COURT and the FEDERAL BANKRUPTCY COURT. A few states ( including Illinois, New York and Massachusetts) have separate LANDLORD-TENANT courts in larger cities, similar to a small claims courts, specifically set up to handle evictions.
The local Probate, District, Circuit, Small Claims, and Landlord-Tenant Courts are all State courts. Of these, you will usually be concerned only with the District Courts, Small Claims, and Landlord- Tenant Courts.
There are one or more District Courts in each county. If there is only one, it will be located in the county seat. Many populous counties have several. You will need to know the location and number of the Court having jurisdiction over your rental property.
What Court Hears Evictions?
Eviction lawsuits are filed in a formal trial court (called "municipal," "county" or "justice"), in Small Claims Court, or, if available, in Landlord-Tenant Court. Some states give landlords the choice; others confine eviction lawsuits to one court or the other. If you have a choice, you'll want to consider the amount of unpaid rent. If you're suing for unpaid rent and damages which total higher than the small claims court's jurisdictional amount, you must use a higher court.
Attorney fees clause. If your lease or rental agreement contains an attorney fees clause, and provided you have a strong case and a reasonable chance of collecting from your tenant, you may want to hire an attorney and go to a higher level trial court. The attorney's fees would be added to your judgment and be collectable from the tenant when you win. However, if you are evicting for unpaid rent it is likely that the tenant has little or no funds and your chances of collection are dim. In that event, you may realistically choose to use Small Claims Court instead.
There are important differences between regular trial courts and Small Claims (or Landlord-Tenant) Court.
In Small Claims Court, the regular rules of evidence are not strictly enforced and things are pretty relaxed. You can show or tell the court your side of the story without adhering to the "foundation" requirements that apply in regular courts. Many states may also provide for "Summary Proceedings" in a regular court that are very much like a small claims action.
Please note that a tenant who has been evicted in small claims court may, in a few states, enjoy an automatic postponement during an appeal to a regular court.
Laying a foundation & Rules of Evidence in Formal Court
In regular court, the Plaintiff (Landlord) and Defendant (Tenant) may engage in a pre-trial process called "discovery," during which you can ask each other about the evidence that supports your positions. The information gathered during discovery that can be used at trial includes: depositions (where witnesses are questioned under oath and usually recorded by a court reporter.), interrogatories (written questions that cover information normally involved in a landlord-tenant dispute.) and "requests for admissions," (specific statements of fact that the opposing side is asked, under oath, to admit or deny).
The discovery process is normally available in formal court, but not in summary proceedings or in small claims or landlord-tenant courts. In regular court, either you or the tenant may attempt to move the case out of court quickly by filing pretrial requests to the court to dismiss or limit the case.
In summary proceedings, small claims and landlord-tenant court, the idea is to decide the entire case during one quick, efficient court hearing. Consequently, formal court motions and discovery are not used.
Avoid he-said, she-said and just your word against theirs whenever possible.
It is important to back up your eviction lawsuit with as much hard evidence as possible. For example, if the basis of the termination is that the tenant has violated a rental rule, like keeping an unlicensed vehicle or pet, be sure that you have a copy of the lease and rules that your tenant signed when he moved in. Most courts will require a signed copy of any lease provision they are asked to rule on. It is also helpful to have photos and/or witnesses that support your position.
Remember, in Small Claims Court you can present practically any evidence you want to the judge, so be prepared to use all you can.
Information useful for small claims cases.
A judge in a formal court will not examine documentary evidence until you have established that it is likely to be relevant and trustworthy. Presenting the legal background of evidence is called "laying a foundation." Here are a few hints on how to prepare evidence for formal court.
Documentation. You may have sent a termination notice for nonpayment of rent because your tenant withheld money and improperly used a repair and deduct remedy by failing to give you a reasonable amount of time to fix a maintenance problem yourself. You'll want to show the judge a copy of the letter you sent to the tenant, promising to fix the defect within a reasonable amount of time. You will need to be able to introduce your letter into evidence. To do so, you can usually just testify that the letter is a true copy, that the signature is your own and that you mailed or handed it to your tenant on a specific date.
Physical or Photographic Evidence. If your termination notice is based on damage to your property, you will want to present at least a photograph of the damage. But before the picture can be admitted into evidence, someone will have to testify that the picture is a fair and accurate depiction of the damage. It's best to ask a neutral witness to look at the problem and come to court prepared to testify that the photo is an accurate portrayal. Your witness need not have taken the photo.
Collaboration. If your tenant has withheld money because of claims that the premises are uninhabitable, you may decide to evict for nonpayment of rent. If the tenant filed a complaint with the municipality or local health department and they issued a report giving your property a clean bill-of-health, you'll want the report considered by the court and admitted into evidence. Ask the building or health department inspector to testify that they wrote the report as part of their normal duties when investigating possible code violations. To get the inspector to court, you'll need to ask the judge for an order, called a "subpoena," that you can serve on the inspector.
Special note. Most states forbid landlords from evicting a tenant for a certain period of time following any legitimate exercise of a legal right, such as rent withholding or request for inspections, on the assumption that the eviction may be retaliatory.
See Tenant Defenses; Retaliatory Evictions.
State Statutes and Court Rules provide for the eviction of a tenant. You must learn yours.
Most state court rules make an effort to cast their time provisions in uniform units. For example, a notice to pay rent or quit period may be of 3, 7 or 10 days, depending on the state. The appeal period following a judgment for possession may be 10 days or more and a notice to quit (termination) usually runs for 30 days if that is the length of the rent cycle. As long as you know the correct time periods as they apply to evictions, the reason for them need not trouble you. Still, if strange numbers like 56 have perplexed you, you now know the reason.
RHOL provides the relevant state statutes and time provisions on your state page.
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