Don't Be an Ostrich!

Sometimes tenants, when faced with an eviction complaint, “hide their heads in the sand” and fail to answer the complaint. Their lack of response paves the way for a landlord to secure a default judgment against them. The tenant can attempt to “set aside the default judgment” with a motion but this generally requires attorney intervention.

Or, if the tenant is later served with a Writ of Possession by the Sheriff and given 5-days to relocate (or else!), the tenant can ask the court for a “Stay of Execution.” If granted by the court, a stay provides the tenant with a little extra time to pack up their belongings and move before the Sheriff revisits the property and walks the tenant out the door.  A Stay can be applied for even if the tenant fights the lawsuit and loses the case.

A stay can be made on an ex parte basis, that is, the tenant can ask for a hearing with the presiding judge without the landlord’s agreement to the hearing provided that the landlord or his/her attorney is given 24-hours advance notice of the hearing. Generally, this notice is made by consulting the opposing party by telephone. (It’s a good idea to also provide notice of the hearing by FAX and take the FAX transmittal to the court as further evidence that the landlord was given notice.)

At the hearing, the tenant can offer to “pay to stay,” and provide the court with 10 to 40-days of rent, at the per diem rent amount stated in the eviction complaint, to secure more time to find new housing. However, the tenant must show that immediate relocation would be a greater hardship to the tenant than to the landlord. The tenant must also be prepared to argue why they should be granted a stay if the landlord or his/her attorney argues that the tenant must go, and go now.

Net, net, when faced with a legal proceeding, don’t be an ostrich. Although it is difficult to do, face the legal proceeding head-on and preferably with an attorney by your side. If you can’t afford an attorney, check out the resources on the side-bar of this blog and, if all else fails, purchase a NOLO guide to help answer the complaint and represent yourself at the pre-trial and trial hearing. Finally, most landlords are open to settling with the tenant; it’s more cost-effective to work out an agreement with the tenant than conducting an eviction proceeding and considerably less stressful on both parties.