Back to Basics: A Rundown of Tennessee’s Eviction Process
Recently, I've had a flood of questions from clients asking how to evict problem tenants. This post describes how to evict a tenant or other occupant of commercial real estate.The first step in dealing with an eviction is determining whether there is an agreement in place that governs occupancy of the property. Typically, the lease or other agreement between the parties will outline any notice that may be required and other conditions precedent that must be satisfied prior to exercising remedies.Fortunately, in addition to the applicable provisions of a lease, if any, the Tennessee Legislature has provided us with a statutory scheme “to provide a streamlined summary procedure to determine the rights to possession of land.” 94th Aero Squadron of Memphis, Inc. v. Memphis-Shelby County Airport Auth., 169 S.W.3d 627, 637 (Tenn. Ct. App. 2004); see Tenn. Code. Ann. §§ 29-18-101 through 29-18-.134. To begin eviction proceedings, one must commence what is called a Forcible Entry and Detainer (“FED”) action. This action may be brought in the General Sessions or Circuit Court in the county in which the property lies, although typically they are brought in General Sessions Court. Id. §§ 28-18-107, 28-18-108. Absent a provision in a lease, the property owner does not have to give an occupier notice to vacate the premises, other than service of the FED warrant initiating the detainer suit. Id. § 29-18-113. A sheriff is generally responsible for serving the occupier with the detainer warrant and notifying the occupier of the time and place of trial. Id. § 29-18-117. The sheriff may serve the occupier by “tack and mail” where he/she posts a copy of the affidavit on the door and mails a copy to the defendant at the property address. The trial is not to be less than six days from the date the occupier is served with the detainer warrant, although the trial date can be extended by the parties. One thing to keep in mind, if the tenant or occupant is not physically served, no judgment can be obtained for back rent or otherwise--only possession can be granted.On the assigned day, the matter is then tried by a judge (without a jury), unless a default judgment is entered because the tenant or occupier does not appear in court. Id. § 29-18-119. The judge is authorized to determine the arrearage of rent, interest, and damages, if any, and enter judgment in the total amount due. Id. § 29-18-135. After the judge rules in the property owner’s favor, an execution or writ of possession to give the property owner possession of the property cannot be entered for at least ten days, during which the occupier may appeal the decision, if desired. Id. § 29-18-126. After those ten days pass, a Writ of Possession, which authorizes the sheriff of the county to physically remove the occupants of the property and their personal property from the property, may be issued. Once the Writ of Possession is issued and sent to the sheriff, the property owner can schedule the actual eviction. The property owner provides a labor crew, who is supervised by the sheriff, who carries out the actual eviction by putting the occupier’s personal property on the curbside outside of the property.Notably, there is a three year statute of limitations in the statutes that prevents a FED action if the occupant has been in the space for three year, so it is important not to let undesired tenants remain in property for too long without contesting their presence. Tenn. Code Ann. § 29-18-109.A few practice pointers to remember about eviction:
- The most important point is to never engage in what is called self-help. Never lock a tenant or occupier out of the property, put them out yourself, or cut off the heat, lights, or water yourself. The statutes exist for a reason, and it is very important to follow the statutory procedure for eviction.
- If the Landlord or property owner wants a judgment, then the tenant or occupant must be physically served.
- Don’t forget to follow the lease. Make sure that you determine whether a lease is in effect and properly follow the provisions of the lease related to eviction.
- Reach out to the tenants/occupiers before commencing eviction proceedings, if possible. Typically, tenants/occupiers do not want their possessions forcibly removed and are willing to cooperate with the property owner, if given the opportunity.
- Don’t sit on your laurels. Especially for property owners with lots of properties, it is possible to let one “fall through the cracks.” The FED statutes in Tennessee do contain the three year statute of limitations that applies in some circumstances, so it is important to act promptly if you want possession of property back from an occupier.