Eviction and What You REALLY Need to Know

Last night my wife found an ad on Facebook for a super cute puppy.  Only $100.  If you haven’t shopped for a puppy lately, that’s pretty cheap.  Right in the ad, it stated that they couldn’t keep the puppy because dogs aren’t allowed in their apartments.  That may have been good to know before bringing the puppy home.

key in lockEviction.  It’s a term that brings up a lot of emotions.  Unhappy landlords.  Unhappy tenants.  Things done the wrong way.  Things done legally but that still make people frustrated.  Most people think it’s because of missed rent payments, but it can be for a number of reasons, including an unwelcome new pet.

Since we haven’t achieved perfection, world peace, or anything else like that yet, let’s talk about eviction.  Let’s talk about what can’t happen, what can happen, and what you need to be most concerned about if you are facing eviction.

Understand that eviction laws can vary depending on your location.  Since we are in South Dakota and the vast majority of our clients are South Dakotans, that’s what we’ll discuss here.

First, what can’t happen:

  • A landlord cannot simply show up, unannounced, and lock you out effective immediately.  There is a process they legally have to follow.
  • A landlord cannot just lock you out and keep all of your stuff to ‘make up for’ your missed rent.

So here’s how the process works around here:

  • 3-Day Notice – Officially called the ‘Notice to Quit’, gavelit basically says “Here’s what you are doing wrong (or not doing) and you have 3 days to make it right.
  • 4-Day Notice – If you haven’t met the conditions of the 3-Day Notice, the tenant is then served with the 4-Day Notice, officially called the “Summons and Complaint”.  This means you have 4 days to respond to the landlord’s complaint through the court system.
  • Hearing – At least 4 days after service of the 4-Day Notice, there will be a court hearing where the judge will hear the eviction case and rule.  If you get notice of a court date, SHOW UP TO COURT!  You can plead your case and the judge can give you transition time before you have to be out of the rental.  If you don’t show up to court, the judge can issue a default judgement and the Sheriff can remove you from the property that very same day.
  • Lockout – This is when the landlord shows up with a deputy and probably a locksmith and the tenant is officially, physically removed and excluded from the property.  This is when the tenant officially no longer has the right to be there.

A few other notes:

  • Leaving Stuff Behind – If, for whatever reason, you leave personal property behind in the rental unit, the landlord must keep it for you and give you a chance to retrieve it.  If it is less than $500 in total value, they must only keep it 10 days.  If the value of your stuff is over $500, the landlord must keep it for at least 30 days.  Do be aware, any costs incurred from storing your stuff can be passed on to the tenant.
  • Constructive Eviction – Sometimes the rental unit is in such poor condition that the tenants should no longer be held accountable for paying rent.  This is called Constructive Eviction.  If a tenant is going to use this defense for not paying rent, however, they must demonstrate the conditions by actually moving out before they stop paying rent.  The tenant must also give the landlord reasonable notice and opportunity to fix the problems before they have the right to move out under Constructive Eviction.
  • Avoidance – Since the first two steps of the eviction process require legal serving of papers, just don’t answer your door, right?  Well, no.  If the server makes multiple attempts to serve the documents and cannot reach the tenant, they can effectively serve the documents by posting the notice “in a conspicuous place” at the property (read: taped to your front door).  Delay eviction by avoidance?  Yeah, that won’t really work.
  • Remaining Balance – Eviction does not simply remove your liability for any rent, fees, penalties or costs that may be incurred.  The landlord does have the right to hold your deposit and get a subsequent judgement against if money is still owed.

And now, what you really need to know about eviction:

Why. That’s really the big question here.  Why did you get evicted?  No, it’s not going to help your current eviction situation, but rather hopefully help prevent another one in the future.  Housing stability matters in a lot of different ways.  To achieve housing stability, we must all understand what we are responsible for, where we have made mistakes, and what we need to improve for the future.

Again, this probably won’t save you from your current eviction process.  Rather, this is about the future and making sure you can stay in your next rental.

If you have concerns about your current housing situation or would like help making sure finances aren’t the cause for a future eviction, the counselors at the Center for Financial Resources can help.  You can either call us at 605-330-2700 or go online to schedule an appointment.  We certainly don’t have any magic wand to just make everything OK, but we can help you figure out the next step.


written by Breck Miller
images courtesy freedigitalphotos.net

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