Serve an Eviction Notice

Landlord-tenant laws vary from state to state. But no matter where you live, you’re going to have to serve (deliver) an eviction notice on a tenant in order to begin formal legal proceedings with the court to have the tenant vacate the property. Knowing which eviction notification forms to use—and how to legally serve the tenant with them—is crucial to your success in evicting the tenant from your property.

Steps

Preparing to Serve the Eviction Notice

1. Determine if there are any pre-requisites. Landlord-tenant eviction proceedings are governed by the laws of each state, so you have to be sure you’ve met all your state’s requirements before serving eviction papers.
   • Check with your local landlord-tenant court—either in person or online at the court’s website—for instructions on handling an eviction, including any notices you may have to give the tenant before serving eviction papers.
   • An example of a pre-requisite is a Notice to Cure, in New York. This has to be served on a tenant before serving an eviction notice. It tells the tenant what he or she did wrong, and provides for a ten day period to correct the problem.)
2. Obtain the appropriate eviction forms. It depends on your state, but you'll commonly find the eviction notice referred to as a Notice to Quit, Notice to Vacate, or Notice of Termination. This is normally combined with a Demand for Possession (of the premises). You can usually get these forms from the court's website, or at the court clerk's office.
3. Make sure your eviction papers are in order. Before serving the papers on the tenant, make sure the contents of the notice completely comply with the form's instructions. Again, the needed information will depend on your state's laws, but some common information to include is:
   • The full name of the tenant or tenants. (You want to be sure everyone you’re seeking to evict is on the notice.)
   • The date by which you want the tenant to leave the property.
   • The reason for the notice (such as failure to pay rent, or breaching the terms of a lease).
   • The date by which the tenant must cure (remedy) the problem, in order to avoid eviction.
   • An indication that you intend to hold the tenant responsible for any current and future rent or other fees due, under the terms of the tenancy.
4. Decide who will be serving the tenant. Someone has to deliver the eviction notice to the tenant. In many—if not most—cases, the landlord is permitted to do this. However, some states (like New York) prohibit the landlord from serving papers.
   • Find out what’s permitted in your state. If you’re allowed to serve the papers yourself, and you choose that option, always bring a witness to corroborate exactly what you did. You might also think about having a friend or family member (over the age of 18) deliver the papers, again if your state allows it. Note that normally this person can’t be involved in the lawsuit.
   • Consider using a professional process (legal papers) server. Many times these are personnel in the local Sheriff’s or Marshall’s office. You can also use a private process server, if your state approves of that.
5. Learn the permissible times to deliver the papers. Many states will limit the time of day during which you can serve papers on a tenant (such as 6 a.m. to 10 p.m.), as well as prohibiting serving papers on particular days, like Sundays or certain holidays.

Employing the Various Service Methods

1. Use personal service. This is universally considered the best procedure for serving an eviction notice on a tenant. You literally hand the papers to the tenant, so there’s no dispute as to whether or not he or she received them. As mentioned above, it’s advisable to have a witness, if anyone other than a professional process server does the job. This helps you to prove that service was made, if a tenant refuses to admit that he or she received the papers.
2. Employ “substituted service”. Depending on your state laws, this is usually permitted if you’ve been unable to deliver the papers directly to the tenant. In many states, substituted service is the name given to the procedure of hand-delivering the eviction papers to someone in the tenant's residence, other than the actual tenant.
   • In some states, you may only be allowed to serve the papers on an adult at the residence.
   • Other states may permit service on a person of suitable age and discretion (basically someone who would be considered “responsible”), who lives or works in the tenant’s home. In other words, it can’t be a stranger or visitor, and certainly not a small child.
3. Utilize “conspicuous service” if necessary. This method of serving the eviction notice is more commonly known by its slang name—“nail and mail”.
   • The process involves affixing the notice of eviction to the door of the tenant’s premises, or slipping it under the door of the residence.
   • Determine how your local law applies, particularly in terms of when this type of service can be used. Many times it’s not allowed unless you’ve exhausted attempts at using the other methods of serving the papers.
4. Mail copies of the papers to all tenants included in the notice. You’ll need to mail a copy of the eviction notice to the tenant, if you used the “nail and mail” method. And some states may also require you to mail the notice if you used substituted service.
   • Send any mailings by certified mail - return receipt requested (RRR) and also by regular mail. Although many states will require this anyway, do it even if it’s not mandated.
     • With certified mail RRR, you’ll have the return receipt as proof of delivery. If the tenant is dodging the notice, the certified mail may come back as undelivered, but odds are the regular mail won’t (since it can be delivered without the tenant having to sign for it or pick it up). You’ll still have the undelivered certified mail as proof that you attempted to send it by that method.
     • Send a separate mailing of the eviction notice to each of the tenants listed on the notice. You want everyone in the premises to vacate, so don’t give someone a possible defense that he or she wasn't specifically given notice to leave the property.
   • Send the notices no later than the next business day if possible, as some states set a time period for mailing the notices.

Following Up on Service

1. Retain copies of all paperwork you’ve served. Make sure you have copies of everything you served on the tenant, including the notice of eviction, as well as proof of how you served the tenant with the notice. If you weren’t able to serve the tenant personally, keep a log of each and every time you attempted to do so.
2. Keep track of return receipts. Be on the lookout for either the return receipt from your certified mailing, or the actual certified mail returned as undelivered.
   • This is your proof that you followed the state’s laws in attempting to serve the tenant with the eviction notice when mailing was required.
   • If you don’t get either the return receipt or the undelivered certified mail back within the normal time period for your location, go to the post office to track its whereabouts.
3. Find out what papers need to be deposited with the court. Check with the court’s website, or the court clerk’s office, to determine if you need to bring proof of service of the eviction notice to the court within a certain period of time.
   • Sometimes you may only have to bring this documentation when you file (start) the actual eviction complaint (formal legal court proceeding). Other courts may want you to deliver the proof to them before filing the complaint, sometimes as soon as three days after you serve the eviction notice.
   • If your state requires you to attempt personal service before using any other method, contact the court clerk’s office to see if the court will want to see proof of the efforts you made to effectuate personal service.
4. Determine how long you have to wait to file the eviction complaint. Look online, or call the court clerk, to get an exact date when you can actually file the eviction complaint with the court. Your method of service will probably influence that date. For example, if you had to send a notice by mail, the court will usually delay the date by which you can file the complaint, to compensate for the time it normally takes for the mail to be delivered.

Tips

• Note that in some states, any service of legal papers other than personal service is given the term “substituted service”. So, in those states the “nail-and-mail” method of service is called substituted service, just like when you serve someone other than the tenant at the tenant’s residence. Those states may not use the term “conspicuous service", at all.
• Before serving the tenant by the nail-and-mail method, it would be wise to try to serve the tenant personally at least twice—at different times the same day, or on two different days. In fact, this may be required in some states. Try to serve the tenant when you believe it’s likely that she or he will be home.
• Considering how protective courts are of a tenant’s rights, and because eviction proceedings can sometimes be a difficult maze to navigate, you might want to consider hiring a knowledgeable attorney to represent you during the process.

Warnings

• If the legal notices in a case aren’t served the right way, the judge can dismiss your case and make you start the process all over.
• Don’t try to evict a tenant without using the proper legal procedures. In many states this is illegal. Avoid taking actions such as:
  • Changing the locks
  • Padlocking the doors
  • Removing the tenant's furniture or property
  • Removing the door of the apartment or house
  • Turning off the electricity or water, or
  • Doing anything else that keeps the tenant out of the house or apartment.

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• Write an Eviction Letter
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• Evict a Tenant in New York
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