Eviction Questions and Answers
Q. What if a tenant does not pay their rent?
A. If a tenant is late on their rent payment, you may serve them with a 5-day notice to quit or pay rent. If during the 5-day period, the rent is not paid in full, you may commence an action for eviction. (Keep in mind that if you accept a partial payment while the 5-day is pending or during the eviction proceedings, you are in effect canceling the 5-day notice and you will have to issue a new 5-day for the remaining amount.)
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Q. What if a tenant breaches their lease by other means, i.e. noise, nuisance, etc.
A. If a tenant breaches their lease by any means other than non-payment of rent, you may serve them with a 5-day notice to correct the breach. If they repeat the same breach after the 5-day notice period, you may then commence an action for eviction. Or, you may issue a 14-day termination notice. The tenant does not have the right to cure a 14-day notice and must move within 14 days. If the tenant does not move, or you may file an eviction.
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Q. How do I commence the eviction action?
A. You must take the following steps:
- Eviction papers may be filed in the Dane County Clerk of Courts office in the City County Building. You can obtain and file the forms at the Clerk’s office. They will in turn, give you a return date for an initial court hearing, approximately 2-3 weeks later. There is a fee that must be paid at the time of filing. Currently it is $82.00.
- The Sheriff or a private process server must serve the eviction papers to the tenant which is an additional fee depending on the number of times they have to attempt service. It is advisable to use a private process server because they are normally less costly than the sheriff. The Madison Landlord Council recommends Derek Kelliher, Professional Investigations & Process Service, dkellpips@yahoo.com or call (608) 438-9333.
- If the process server is unable to personally serve the eviction papers to the tenant, they will post a copy on the door of the apartment and mail one to the tenant. The process server will send you an affidavit of service that you must bring with you to the initial hearing in order to proceed with the hearing. (The Sheriff will not do the “post and mail”. Private process servers will normally do so if they cannot obtain personal service.)
- On the date of the initial hearing, bring all records and/or documents regarding the allegations for eviction. If the tenant appears to dispute the allegations, the case will be scheduled for a trial before a Circuit Court Judge, normally on the Friday of that same week, or Friday of the next week. At that time, you will present the information to support your case.
If the tenant does not appear at the initial hearing, the court will issue a default judgment, meaning you have the eviction on record. The court will also ask you if you want a ‘writ’, (‘Writ of Restitution’), which is the document you need to allow for the removal of the tenant from the premises.
- The next step is to pay for the Writ, which currently is $5.00. You must then deliver the Writ to the Dane County Sheriff’s Department. (Private process servers can not service the Writ.) The small claims staff at the Clerk of Courts will direct you to the Sheriff's Department. A Writ is valid for 10 days after service. The writ requires the tenant to remove themselves and their property from the premises within 24 hours from the time that they are served. You must schedule a move-out with the Sheriff within the 10 day period that the writ is valid. If the tenant moves out on their own, you then cancel the Sheriff move.
If the tenant does not move out on their own, the Sheriff’s deputy will escort them out of the apartment and you may then change the locks. If there are possessions in the apartment, you are responsible to hire a bonded trucking company to store the tenant’s possessions. (This should be done prior to calling the Sheriff’s department.)
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Q. How do I collect the rent and damages owed to me?
A. Once you have determined all of your damages, which includes all rent due upon re-rental of the apartment, you can pursue your rent and damage claim using the same eviction case. The Clerk’s office has a Rent/Damages form that you can use. The process involves sending an itemized list of the rent and damages to the last known address of the tenant as well as filing a list with the Clerk of Courts under the original case number. You must have a valid current address for the tenant before mailing the Rent/Damage Claim form.
The Clerk of Courts will issue a new court date for rent and damages. There is no appearance required by the landlord. Instead, if the tenant files an answer disputing your claim, the case will be scheduled for a Court Commissioner trial at a later date, and notice will be sent to the parties by mail.
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Q. May I file an eviction in the winter months?
A. Yes. You may file an eviction any time there is a breach of lease. The time of the year does not matter.
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