Chapter 8 Contents:
The Nuts and Bolts of Fighting Evictions
The tenant’s right to court process
IN NEW JERSEY, THE only way a tenant can be evicted or removed from his or her rental unit is if a Superior Court judge orders the eviction. An order for eviction can come only after the landlord has sued the tenant for eviction in the Superior Court and won. There is no other way that you can be evicted from your home or apartment. This means that you do not have to move out simply because the landlord tells you to or threatens to evict you if you don’t leave.
This chapter explains the legal eviction process. It starts by explaining the law that protects you from removal by the landlord without being taken to court first. Chapter 11, Removals, Stays, and Vacating Judgments, explains what should happen if you lose your case in court and the judge enters an eviction order against you.
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An illegal eviction is now a disorderly persons offense
A lockout or eviction is unlawful if it is not done by a special court officer with a legal court order. “Self-help” evictions by landlords are illegal. If you are locked out or evicted by your landlord and not by a special court officer, or if your landlord shuts off your utilities or does other things to try to make you leave, you should call the police immediately. (You should also call a private attorney or contact your regional Legal Services office.) The law now says that the police must make sure you get back into your apartment. Read the rest of this section to find out why the police must do this.
The law in New Jersey is clear. Landlords or their employees can’t legally evict tenants by themselves. (These kinds of evictions are sometimes called self-help evictions.) Police officers cannot evict tenants. Only a special court officer with a warrant for removal issued by a judge can actually evict a tenant. Landlords who try to evict tenants by themselves are doing something illegal, even if they have gone to court and sued the tenant for eviction. Cite: N.J.S.A. 2A: 39-1 and 2; N.J.S.A. 2A:18-57; N.J.S.A 2A:42-10.16; and related statutes.
But even though the law is clear, some landlords still evict tenants illegally, or scare tenants into leaving by threatening to throw them out. The problem is that many times, when frightened tenants call the police, the police will not help. The police say that they can’t help because what the landlord is doing is not listed in the criminal part of the law books as a “disorderly persons offense” or a “crime.” The police often say that they only deal with crimes, even if they know that what the landlord is doing is wrong.
The New Jersey Tenants Organization (NJTO) had been trying for many years to solve this problem. They finally succeeded. On January 12, 2006, the law was changed. (See P.L. 2005, c. 319.) Illegal evictions are now a disorderly persons offense, and the new law is in the criminal part of the law books. The police now know that they must help tenants who are being illegally evicted by their landlords.
Here are some of the things the new law does. Cite: N.J.S.A. 2C:33-11.1.
- The new law requires the police or any other public officials who find out about an illegal “self-help” eviction to warn the landlord or his workers to stop. If the landlord does not stop, then the landlord has broken the law. If the police arrive after the landlord has already locked the tenant out, the police must tell the landlord to let the tenant go back in. If the landlord refuses, then the landlord has broken the law.
- The police must make sure that tenants who are illegally evicted get back into their home or apartment. If the landlord tries to keep the tenants from going back in, the police must stop the landlord. The police must also give the landlord a summons to go to court, or even arrest the landlord if he refuses to let the tenant go back in.
- The new law says that a landlord who tries to get a tenant out by doing any one of the following things is breaking the law. These things are now disorderly persons offenses: (1) The landlord uses violence or threats of violence to get the tenants out; or (2) the landlord says or does other things to try to scare the tenants into leaving; or (3) the landlord takes the tenant’s property and puts it outside; or (4) the tenant lets the landlord in peacefully, and then the landlord forces the tenant out; or (5) the landlord padlocks the door or changes the locks; or (6) the landlord shuts off the electricity or gas, or has them shut off, in order to make the tenant leave; or (7) the landlord tries anything else to get the tenant out.
- The only way the landlord can evict the tenant is if a special court officer with a legal court order called a warrant for removal comes out himself and does the eviction. And even before the special court officer can do the eviction, he must give a copy of the warrant for removal to the tenant (or leave a copy on the tenant’s door) at least three days before coming out to do the actual eviction. The new law says that the warrant for removal must tell the tenant many things, including that self-help evictions by landlords are now disorderly persons offenses. The warrant must also let the tenants know the earliest day on which the special court officer can come back to do the eviction.
- The new law says that if a special court officer does do a legal eviction, he or she must fill out a new form called an “execution of warrant for possession.” The new form must say when the legal eviction took place, and give the name, signature, and position of the special court officer who did the eviction. The special court officer is required to immediately give a copy of this new form to both the landlord and tenant (or a member of the tenant’s family), and also to post it on the door of the dwelling unit.
This last part is very important. It makes the job of the police officer who is called by a frightened tenant very easy. If the landlord does not have a copy of a valid execution of warrant filled out by a special court officer, then the landlord is doing an illegal eviction. The police officer must tell him to stop trying to evict the tenant. If the landlord does not stop, then the police officer must stop the landlord and charge him with a disorderly persons offense. The police officer must also protect the tenant and see that the tenant gets back into the home.
- The new law says that the Attorney General of New Jersey must make sure that all state and local police officers, prosecutors, and public officials know about the new law. Each police officer must be given a form that describes the new law and the police officers’ responsibilities to enforce it. Police officers must also be given special training to make sure they know what they have to do to stop illegal evictions.
- The new law also says that tenants who are legally evicted commit an offense if they intentionally damage or destroy the landlord’s property. Cite: N.J.S.A. 2C:17-3(a)(2). In addition to criminal penalties, convicted tenants can be required to pay the landlord for the damage.
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Holding your property for rent. It is also against the law for a landlord to hold or take your clothing or furniture to force you to pay rent. This is called a distraint and it is illegal, even if you owe rent to the landlord. Cite: N.J.S.A. 2A:33-1.
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Hotel and motel residents
Guests in hotels and motels do not have to be taken to court to be evicted. The hotel owner or operator can lock guests out of their rooms if they don’t pay their bills or if they disturb the peace. But what about people who have no other place to live and, because of the housing shortage, are forced to live in motels or hotels for months or even years at a time? Are these people residents or tenants who can only be evicted through the court process?
We believe that the answer is yes. However, recent court decisions show that the courts are interpreting the law on a case-by-case basis. In one case, a family that lived in a hotel for over two years because they had no other place to live was considered a tenant and could only be evicted through court order under the Anti-Eviction Act. Cite: Williams v. Alexander Hamilton Hotel, 249 N.J. Super. 481 (App. Div. 1991). In another case, a person who lived in a motel for two months was not a tenant and could be locked out of his room without court process. Cite: Francis v. Trinidad Motel, 261 N.J. Super. 252 (App Div. 1993). In another case, the court held that a person who lived in a hotel for three years and had no intention of moving to other accommodations was a tenant, and that the hotel was the tenant’s permanent home. The tenant was entitled to the protection of the Anti-Eviction Act and had the right to sue for damages for an illegal lockout. Cite: McNeil v. Estate of Lachman, 285 N.J. Super. 212 (App. Div. 1995).
If you live in a hotel or motel, it will help if you can show that the owner agreed, or should have known, that you were not just a short-term guest, or that the owner did or said things that made you believe that you were a tenant. You may need the help of a private attorney or Legal Services if you find yourself in this situation.
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Hotel or rooming and boarding house residents
Residents of licensed rooming and boarding homes are protected from self-help evictions. Owners must evict residents through the same court process as any other tenant. Cite: N.J.A.C. 5:27-3.3(c). Some hotels and motels are really rooming and boarding houses because people live there as their only residence for extended periods of time. The law considers a hotel or motel a rooming and boarding house if at least 15 percent of the rooms are occupied by people who have lived there for more than 90 days. This means that all of the residents (but not the guests) at the hotel or motel have the same rights as rooming and boarding house residents, including the right to be evicted only through court process. Cite: N.J.S.A. 55:13B-3(h). You may need the help of a private attorney or Legal Services to figure out if this law applies to you.
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The legal eviction process
NOTE! As mentioned above, the only person who can legally evict you is a judge. The judge can order your eviction only after a court hearing at which the landlord has proven one or more of the “causes” for eviction under the Anti-Eviction Act.
Also note: If you live in a small building (three apartments or less), and the owner actually lives in one of the apartments, the landlord does not have to prove one of the causes for eviction under the Anti-Eviction Act. But the landlord must still take you to court to evict you.
In addition, the law requires that the landlord give the tenant certain notices before going to court, except for nonpayment of rent. These notices must describe in detail the cause for eviction and must be given within certain time periods. The Anti-Eviction Act is fully explained in Chapter 9, The Causes for Eviction. You need to know about the eviction law to fully understand the way an eviction works.
This section explains the notices required before an eviction complaint is filed, the process of filing and serving the eviction complaint, and what you can expect at the court hearing in an eviction case.
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Notices required before an eviction suit
The Anti-Eviction Act requires that for every cause for eviction except nonpayment of rent, the landlord must serve you with a notice to quit and, in some cases, a notice to cease. In general, notices must specify in detail the cause of the termination of the tenancy (why the landlord wants to evict you). Cite: N.J.S.A. 2A:18-61.2. Other notices, such as a notice to cease, must state precisely and in detail the nature of the offense and the conduct that the landlord wants the tenant to cease. Cite: Carteret Properties v. Variety Donuts, 49 N.J. 116 (1967). Specific detailed notices are required and are extremely important for a number of reasons. A tenant must know exactly the conduct that the landlord wants the tenant to cease, so that the tenant can stop the conduct and avoid eviction. A tenant must know exactly why the landlord is terminating the tenancy so that a tenant can know how to prepare for the trial.
Landlords must “strictly comply” with notice requirements and, if they do not, the eviction action should be dismissed. Cite: Carteret Properties v. Variety Donuts, Inc., 49 N.J. 116 (1967); Housing Authority of the City of Newark v. Raindrop, 287 N.J. Super. 222 (App. Div. 1996); Bayside Condo, Inc. v. Mahoney, 254 N.J. Super. 323 (App. Div. 1992). Please see Chapter 9, The Causes for Eviction, for the causes for eviction and the notices that are required for each cause. See also Failure to follow federal notice requirements and procedures.
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No notices needed for nonpayment of rent. The most common cause for eviction is nonpayment of rent. For this cause, and only for this cause, the landlord does not have to send you any advance notice before filing a complaint for eviction in court. This means that if you fail to pay rent, the landlord can go directly to court and you may not get any warning from the landlord before receiving the court summons and complaint. You do have to receive advance notice before the landlord can take you to court for not paying an increase in rent. Chapter 7, Rent Increases, explains the proper form for this notice.
However, if you live in public or federally subsidized housing, you may be entitled to certain notices before the landlord files an eviction action for nonpayment of rent. A public housing authority must give a tenant 14 days’ notice. There are many types of federally subsidized housing, and the requirements for the notices are different for each. Tenants facing eviction from such housing should contact an attorney to see if the proper notices have been given.
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Notice to cease and notice to quit. If you don’t owe rent but the landlord is trying to evict you for one of the other causes under the Anti-Eviction Act, the landlord must give you certain written notices before taking you to court. For some causes, you must be given a notice to cease first, then a notice to quit. For other causes, you must be given only a notice to quit.
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Notice to cease. A notice to cease is a notice or letter telling you to stop certain conduct that is not allowed under your lease or under the Anti-Eviction Act. The notice must tell you exactly what conduct the landlord is complaining about. Cite: Carteret Properties v. Variety Donuts, 49 N.J. 116 (1967). The notice must also tell you that if you stop the wrong conduct, you won’t be evicted. If you stop the conduct that is described in the notice, the landlord cannot evict you. Cite: A.P. Development Corp. v. Band, 113 N.J. 485 (1988) and RWB Newton Assoc. v. Gunn, 224 N.J. Super. 704 (App. Div. 1988).
A notice to cease is not required for every cause for eviction. A notice to cease is necessary only if you are charged with being disorderly, breaking rules and regulations, breaking an agreement in the lease, or paying rent late.
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Notice to quit and demand for possession. A notice to quit is a notice or letter from the landlord that terminates your tenancy and tells you to move out by a certain date because you have engaged in certain conduct that is not allowed under your lease or under the Anti-Eviction Act. For those eviction causes that also require a notice to cease, the notice to quit also will tell you that since you have ignored the notice to cease, you must move out by a certain date. The notice must tell you specifically what it is that you have done wrong. For causes that do not require the landlord to give you a notice to cease, this is the first and only notice you will get before the landlord can file an eviction suit.
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Service of the notice to quit. A notice to quit must either be:
- Given to you directly;
- Left at your house, apartment, or mobile home with someone who is at least 14 years old; or
- Sent by certified mail.
The notice can be sent by regular and certified mail at the same time. If you don’t pick up the certified mail and the regular mail isn’t returned to the landlord, the court will presume that you have been served. Cite: N.J.S.A. 2A:18-61.2.
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Time required before eviction suit
The Anti-Eviction Act requires the landlord to give you a certain period of time before filing a suit in court for your eviction. This time period must be described in the notice to quit. The time periods vary depending on the cause for eviction in the Anti-Eviction Act. Cite: N.J.S.A. 2A:18-61.2.
Here are some examples:
- Only three days’ notice is required if the landlord wants to evict you for being disorderly or destroying property.
- One month’s notice is required if the landlord wants to evict you for breaking the lease rules or for refusing to accept a change in the lease.
- Two months’ notice is required if the landlord wants to move into your house or apartment.
- Three months’ notice is required if the landlord is trying to board up or demolish the building because of code violations.
- Eighteen months’ notice is required if the landlord wants to permanently retire your apartment building from residential use.
Please see Chapter 9, The Causes for Eviction, to find out how much notice is required for each particular cause for eviction. It is important to remember that no notice period is necessary to bring an eviction suit for nonpayment of rent. It is also important to remember that you do not have to move out just because the landlord tells you to move. You have a right to go to court and explain to the judge why you shouldn’t have to move.
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The court complaint
How does a landlord start an eviction suit if you are still in your apartment or house after the time in the notice to quit has run out? At that point, the landlord can prepare a complaint for your eviction. The complaint states that the landlord wants you out of the rental unit and describes the specific causes for the eviction under the Anti-Eviction Act. The complaint is filed in the Superior Court, Special Civil Part. This is the court that hears landlord-tenant cases.
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The summons. The summons is a paper from the court that tells you when and where the court will hear your case. The summons is attached to the complaint, and together these papers are given to you by the court. The summons and complaint can be mailed to you by the court, delivered to you by an officer of the court, left at your home with a child over the age of 14, or posted on your door.
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Information about tenants’ rights. The Supreme Court has adopted a set of instructions that a judge will read to the audience in court. These instructions explain court procedures and let tenants know about some of their rights. A written set of these instructions must be served with the summons and complaint. Cite: Community Realty Management v. Harris, 155 N.J. 212 (1998).
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Time from complaint to court date. The summons and complaint will tell you when to appear in court. The court rules require that there be at least 10 days between the day you receive the summons and the day you must appear in court.
If the hearing is scheduled for a date that is less than 10 days from the date on which you received the summons and complaint, tell the judge when you appear in court and ask the judge to postpone the hearing.
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Going to court
The date, time, and place of the court hearing in your case are listed on the summons. You must appear in court at the right date and time if you want to defend against the eviction, or try to get more time to pay rent or move out. The first thing that will happen in court is that the judge will “call the list,” or call out the names of the landlord and tenant in each case. It is important that you be present to answer when the judge calls your name and case. If you do not answer, the judge will enter a default judgment against you. This means that the landlord has the right to evict you just because you failed to appear. There is no other penalty for not showing up.
If the landlord does not answer, the case should be dismissed. You should stay in court, however, until you are given permission to leave by the judge or another court official.
If you have already moved out by the court date, it is a good idea to show up in court and ask the judge to dismiss the complaint because you are no longer living there. If you cannot do this, you should write to or call the court.
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Knowing what is going on. At the very beginning of the court session, the judge will read a set of instructions to all people in the courtroom. (These instructions should also be available in written form in the courtroom. If you cannot find a copy, ask a court official where they are located.) The judge should also give his oral and written instructions in Spanish. In addition, there may be a videotape explaining court procedures. It is important to listen carefully to what the judge is saying and to read the instructions. If you do not understand what is happening, or if you are not sure what you are doing, you should ask the judge to explain matters to you. The Supreme Court of New Jersey is very concerned that tenants who appear in court to represent themselves be aware of their rights and treated fairly. Cite: Community Realty Management Company v. Harris, 155 N.J. 212 (1998).
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Postponing your court hearing. You should call the Clerk of the Superior Court, Special Civil Part, or the judge’s office, if for some reason you can’t make it to court on the day of your case. You should explain why you need a new court date and ask for a postponement. You should also call the landlord or the landlord’s attorney and ask the landlord to agree to postpone the hearing. You should try to ask for an adjournment at least five days before the court date. Notify the landlord that you are asking for an adjournment. If you do not ask five days in advance, the request may not be allowed unless you can show exceptional circumstances. Last-minute requests for postponements are usually not allowed.
If an emergency such as illness or a car breakdown prevents you from going to court, you should call the court and ask for a postponement, even if it is the morning of the court hearing.
Please be aware that, in some counties, postponements are rarely given. In those counties, the landlord has to agree and there has to be a very good reason to get your hearing postponed.
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Settling your case with the landlord. You can always settle your case with your landlord, even after you receive a summons and complaint, and until the judge actually begins a hearing in your case. If you reach an agreement to settle your case, get the agreement in writing and be sure that you and your landlord fully understand the terms of the agreement. You should only make an agreement with your landlord if the agreement is both fair and realistic. An agreement that you cannot keep will only lead to your eviction at a later time.
Be careful if you settle your case before the court hearing. If you reach an agreement before the court date, be sure that the landlord agrees to dismiss the complaint or officially end the case against you. This requires the landlord to notify the court clerk. You should also check with the court clerk yourself to make sure that the complaint has been dismissed.
In settling a case, try to get the landlord to agree to terms that will help you. For example, try to get the landlord to agree to make repairs in your apartment and list those repairs in writing in the settlement agreement.
What should you do if you reach an agreement with the landlord on the day you have to go to court? To dismiss the complaint on the court day, the landlord has to tell the judge directly. This means that you should wait until the landlord tells the judge that the case has been settled. It is important that, no matter when you settle the case, the court is notified by the landlord that the case has been ended.
There have been situations where a landlord tells the tenant that the case is settled and that the court case will be dropped. The tenant then does not show up in court. The landlord then will go before the judge and get an eviction order for the absent tenant. Remember: Always go to court on the date listed on the summons.
Some settlements are agreements that “a judgment for possession will enter.” This settlement gives the landlord the right to evict the tenant. Other settlements state that the tenant can stay if the tenant lives up to all of the terms of the agreement. This type of settlement will usually state that if the tenant does not live up to all of the terms of the agreement, the landlord has the right to evict.
Some settlements have to be approved by the court in the courtroom. Other settlements can be approved by the judge at a later time. For more information on settlements, see Chapter 12, Court Rules to Help Tenants.
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In most courts, mediation is required in eviction cases. This means that, before a judge will hear an eviction case, you and your landlord must first meet with a law clerk, other court workers, and even other attorneys, to see if the case can be settled. These people are called mediators. A mediator is not supposed to take sides. The mediator’s job is to help you and your landlord find a way to reach an agreement without having to go to trial.
In mediation, for example, if you don’t have all of the rent you owe, you may be able to get your landlord to agree to allow you to pay part of the back rent each month until the whole amount is paid. If the landlord agrees to this, the mediator will usually write down the agreement and give each of you a copy. As long as you keep your part of the agreement, the landlord can’t evict you without first starting a new case and proving to the court that he or she has the right to evict you. If you don’t live up to your agreement, your landlord can evict you right away.
You are not required to reach an agreement in mediation. You do not have to accept the mediator’s suggestions. You always have the right to go before the judge and have the judge decide your case.
A mediator should not offer you any confusing legal advice, especially if you don’t have a lawyer or if you are not sure of your legal rights. A mediator is not a judge. If you are pressured by a mediator, ask to end the mediation.
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Defending your case in court
The judge will hold hearings in individual cases after he or she calls the list of all of the cases. This means that when you go to court for your hearing, you must be ready to show the judge why you should not be evicted. In other words, you must be ready to defend yourself against the cause or causes for eviction that are listed by your landlord in the complaint.
The common defenses to eviction are explained in more detail in Chapter 10, Defenses to Eviction.
NOTE! These defenses could include, for example, showing that the landlord has not sent you the proper notice to cease or notice to quit, or showing that the conduct that the landlord is complaining about did not happen.
Whatever defenses you use, you must be prepared to present proof (evidence) to back up your defense. This evidence can include written documents, photographs, and the testimony of witnesses. You must take with you to court any and all evidence you think you need for your defense. Examples of the types of evidence that may be used include the following:
- Photos of your apartment;
- Receipts for rent or repairs and canceled checks;
- Inspection reports (the court may require the inspector to come to court and may not consider reports without the inspector being there); and
- A copy of your lease and letters to the landlord.
Any witnesses whom you call to testify on your behalf must be present in court on the day of the hearing. The court will not accept a letter from your witness. You will also testify on your own behalf, so it is important for you to practice your testimony—what you are going to say to the judge—before you go to court.
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A hearing is the time when the judge listens to witnesses and reads documents about your case. The judge hears from the landlord and the landlord’s witnesses first. At this point, the landlord may introduce or give the judge written letters or documents to prove his case. You have the right to examine the documents to make sure that the documents are what the landlord says they are. After the landlord and his or her witnesses have testified to the judge, you can ask them questions about what they have said. You should not be afraid to ask any questions you have. You do not tell your side of the story at this time. You only ask questions. Your landlord or his or her witnesses may not be able to answer your questions or may say something that will help your case.
The judge will hear from you and your witnesses next. This is when you will get a chance to tell the judge your story and explain why the landlord should not be able to evict you. It is also your time to give the judge any letters, reports, photographs, or receipts that support your side of the argument. You can be questioned by the landlord or his or her lawyer. You can then present any other witnesses or evidence you think is important to your defense. For example, if your defense is that your apartment is uninhabitable because of the conditions, you should request that the housing inspector who inspected your apartment appear as a witness, and that he or she bring the inspection records. Note: If the inspector will not appear voluntarily, you will have to subpoena the head of the inspection department. Ask the clerk of the court or a Legal Services office for a subpoena form and instructions on how to issue it.
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The judge’s decision
The judge makes a decision after hearing all of the evidence from you and your landlord. The judge usually announces his decision immediately after hearing the evidence. If you win, the judge will dismiss or throw out the landlord’s case. This means that you are not evicted and you can remain in your rental unit.
If you lose, the judge enters a judgment for possession in favor of the landlord. A judgment for possession is an order for your eviction. It gives the landlord the legal right to have you removed from your apartment or house.
The next step in the eviction process is the act of removing you from your rental unit. This does not happen right away and takes some time to complete. You also have some rights even after the eviction order is given by the judge. The steps for removal and your rights after the eviction order are explained in Chapter 9, The Causes for Eviction.
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