Monthly Archives: June 2015

Properly Executing the Writ

by Harry Anthony Heist, Attorney at Law
The proper execution of the Writ of Possession is crucial to a successful and completed eviction action. The key word here is completed. Many landlords and property managers make serious mistakes at the end of the eviction action, increasing the liability to the landlord and potentially defeating the whole purpose of the eviction action. Most evictions result in the tenant vacating the premises within a week or two after the eviction action is filed with the court, and many landlords have never experienced the execution of the Writ of Possession.

The Mechanics

Issuance of the Writ: Once a final judgment of eviction is obtained, the landlord must decide if a Writ of Possession, hereinafter Writ, is necessary. If the landlord decides that a Writ is indeed necessary, the attorney submits the Writ to the Clerk of Court along with a check to the Sheriff’s Department, usually in the amount of $70.00. The Clerk of Court then confirms that a final judgment has indeed been signed by the Judge and “issues” the Writ. The Writ then is taken to the Sheriff’s Department where it is processed by staff of the Sheriff’s Department.

Service of the Writ: Once processed, the Writ is assigned to a Deputy for service upon the tenant. The Deputy then takes the Writ and serves it upon the tenant, or in the absence of the tenant, tapes it to the tenant’s door. The Writ informs the tenant that he must vacate the premises within 24 hours.

Notification of the landlord: The landlord is then called by the Deputy who served the Writ, and a date and time is set by the Deputy, at which time the Deputy will come and execute the Writ.

The Problem

The purpose of the Deputy’s call to the landlord is really twofold. First, it is to inform the landlord that the Writ has been served and to schedule the time when the Deputy will meet the landlord at the property to give the landlord actual possession. Unfortunately, there is another part of the Deputy’s conversation with the landlord that causes a problem, and this is the second part of the call. The Deputy, once the date and time for the meeting is set up, will ask the landlord if he or she “needs” the Deputy to execute the Writ. If the landlord says “no,” the Deputy will return the Writ to the clerk as “unexecuted”, meaning “incomplete”.

Why does the Deputy ask the landlord if the Writ is wanted?

The Deputy has many Writs to serve on any given day. Often the Deputy’s schedule will get backed up, as some Writs require more time to serve than others. Sometimes a landlord is late to meet the Deputy, and the Deputy will wait a small period of time, causing a ripple effect with the schedule. Occasionally the tenant must be physically removed from the premises, resulting in further delay. In some instances, serious disputes or altercations occur, and the Deputy must remain on the premises until the tenant is finally removed from the premises and no longer poses a danger to the landlord, the landlord’s workers or the Deputy. The Deputy wants nothing more than to have the landlord tell him that the Writ is not needed. It is completely understandable; the Deputy is just trying to get the Writs served for the day. For each Writ that the Deputy can cancel or return unexecuted, this will free up more time for the Deputy to get to the next Writ that needs to be executed.

What does the Deputy say?

The Deputy will ask the landlord if the tenant is still in the rental unit. Often the landlord is not sure if the tenant is still in possession, and the Deputy gives the landlord his cell phone number to call. The landlord then goes and checks the property. If the property is empty or appears empty to the landlord, the landlord will notify the Deputy, and the Deputy will then ask the landlord if the Writ execution is “needed”. Often the landlord will say “no”, thinking that if the tenant is not there anymore, then it must be unnecessary to meet the Deputy.

The Consequences of telling the Deputy “NO”

If the Deputy is told by the landlord that the Writ is not needed, the Deputy returns the Writ to the Clerk’s Office as unexecuted, and it is docketed as such. The tenant now officially has NOT been evicted. Yes, an eviction was filed on the tenant, BUT the eviction was never completed. The tenant has NOT been evicted from the property, even though he may in fact have vacated the premises and will never be seen again.

The tenant may return: If the tenant were to return, he could simply move right back into the unit, and the landlord would need to file additional paperwork with the court seeking a new writ of possession, or possibly even be forced into filing a brand new eviction, starting all over again from scratch. The returning tenant would not be considered a trespasser, and the Deputy will do nothing to remove the tenant without further order from a Judge.

The tenant may return looking for personal property: If the tenant comes back to the premises and the landlord has disposed of her personal property, she could hold the landlord civilly and possibly criminally liable for the loss of the property. The tenant could say just about anything as to what was taken and its alleged value, and it would often be difficult to counter these allegations. When the landlord fully executes the Writ and subsequently removes the personal property to the property line, the landlord’s liability to the tenant for her personal property is negated. When the writ is not executed, the potential liability for improper personal property disposition can be very high.

The tenant may use the common areas of the property : The landlord may observe a former tenant using the community pool, exercise room or laundry room. A Deputy may be more reluctant to trespass the “former” tenant if the eviction was never completed.

You have wasted $70.00 A Writ costs $70.00 and was paid for by your attorney. You will be billed by your attorney for that Writ. By canceling the Writ, you increased your liability, failed to formally complete the eviction, increased the chance of a big problem and wasted $70.00.

When the Deputy calls, what should you say?

When the Deputy calls you to set up the Writ execution time and day, if you are asked if the tenant is still there or if you still need the Writ, simply say “YES”. Never quit short of the finish line. It is a sure way to lose the race.