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Sunday, October 07, 2012

"Ask the Judge" Column continues in La Prensa of SA, 10-7

Ask the Judge: The Writ of Re-entry
By Judge Steve Walker

A week doesn’t go by in Justice of the Peace Court, Pct. 2, when a tenant is locked out of their house/apartment or even a commercial business by an irate landlord who wants them out immediately.
Most times the landlord has just cause to do so when the tenant fails to pay their rent and the landlord wins a repossession/judgment against the tenant in eviction court and an appeal has not been filed within five days to the county court.

It is not unusual for many tenants to fail to show up for court after being served and the case is ruled a default. Rule of thumb is when the defendant fails to show it becomes an automatic default and the plaintiff wins the case. Other times the tenant shows up and still loses when it is proven they did not pay the rent or broke the lease in some way. As previously stated, the defendant can file an appeal to the county court within the time restrictions.

Evictions are normally based on failure to pay rent unless it is a breach of contract. When a breach of contract occurs like a no pet clause or no smoking in the premises and the tenant violates those restrictions, the landlord must have legal representation, whereas simple failure to pay rent does not require the landlord to hire an attorney. In that particular situation the landlord can represent himself/herself in the case.

However, the landlord like the tenant has to adhere to the provisions of the lease or agreement that both parties agree to and sign when the tenant moves into the property.

If either party fails to uphold the written contract, if there is one, either side can take legal steps to remedy the problem. Arbitrarily locking out the tenant is not justified and can cause the landlord to find him/her being sued in small claims court for damages.

When the aggrieved tenant finds himself/herself locked out of their personal or residence or business and wish to fight it, they must request a hearing and file a writ of re-entry if they believe they were unjustifiably or erroneously locked out from the property.
They must fill out paperwork and must swear under oath that all information offered is true and correct. Lying or misrepresenting any information given can lead to fines or incarceration for contempt of court.

The tenant may also file a Pauper’s Affidavit if they can prove they are financially unable to pay the filing fee for the writ of re-entry.

The first question a Judge asks in the writ of re-entry hearing to the tenant is “do you owe rent?” If the answer is “yes” then the writ is denied. If the answer is “no” then the landlord must show why he/she locked out the resident. If they fail to show proof as to why the tenant should be locked out, the writ of re-entry is approved.

Lastly as always, if you are due in court, be sure to show up to court on time. It is in everyone’s best interest.

Justice of the Peace, Pct. 2 Steve Walker is a Vietnam Veteran and a former Journalist.

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