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 you receive an eviction notice, call Vermont Tenants (802-864-0099) or Legal Aid (800-889-2047) right away: there are very specific timelines and processes for contesting an eviction.
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. Click here for a summary of proper notice periods.
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.
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.
(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.