UNDERSTANDING THE NEVADA EVICTION PROCESS
From the Constable, Las Vegas Township (More information can be found at Nevada Revised Statutes: CHAPTER 118A – LANDLORD AND TENANT: DWELLINGS)
EVICTIONS All evictions must begin with a NOTICE. There are several types of notices to choose from. You may not always be able to use the quickest notice available. You must choose one that applies to your specific situation. There are separate notices and processes for manufactured homes and non-manufactured homes. Evictions may take anywhere from 10 to 180 days, depending on the circumstances of the case. Nevada Revised Statute 118A.390 makes it illegal for a landlord to use “self-help evictions” to carry out an eviction. For example, a landlord cannot change out a tenant’s locks without the involvement of the Court, the Sheriff, or Constable. A landlord cannot try to force the tenant off the property by making living conditions “unbearable”.
GENERAL INFORMATION FOR NOTICES The numbers of days listed for each of these notices are BUSINESS (judicial) days and not calendar days. Please note that the day of service does not count as one of the days. Example (5 day pay or quit): You come to us on Thursday (4/8). We serve the notice on Friday (4/9). Tenant has Monday thru Friday (4/12 thru 4/16) of the following week to file an answer to the notice. You contact us on Monday (4/19) to continue the eviction process. The actual return date will be printed on your receipt given to you by our office. You may return to our office after the posting of the notice to pick up the notice, but you cannot file it with the court until the appropriate number of days has passed or you may have to start the process over again. THE NOTICE INFORMATION PRESENTED BELOW IS PROVIDED FOR YOUR CONVENIENCE AND IS NOT LEGAL ADVICE ON HOW TO PROCEED WITH YOUR CASE. IF YOU ARE NOT SURE OF WHAT NOTICE TO USE, YOU SHOULD CONSULT AN ATTORNEY.
5 DAY NOTICE TO PAY OR QUIT: Nevada Revised Statutes require a five-day notice to the tenant, instructing the tenant to either pay the rent or “quit” (leave) the rental property. To evict a tenant for nonpayment of rent, the landlord must “serve” (deliver) a Five-Day Notice to Pay Rent or Quit to the tenant. (NRS 40.253(1)(a).) This noticed is used when a tenant does not pay rent. If you have a grace period in your lease, you must wait until this period has passed in order to serve the notice. If there is no grace period, you can serve the notice the day after rent is due. If the tenant pays you the full rental amount you must accept it. If they pay a partial amount you are able to refuse the payment. If you decide to accept a partial payment, you can refile a new 5-day notice for the balance due. Once you file this notice, there is no other notice that follows this 5-Day Pay Rent or Quit. After the five business days, let us know if your tenant has not paid rent and if you would like to move forward with the eviction process. After service, a landlord cannot refuse to accept the tenant’s rent. Rent includes late fees, but a summary eviction cannot be ordered for things like court costs, collection fees, attorney fees, and the like. (NRS 118A.150, NRS 188A.220(1)c.)
TENANCY-AT-WILL NOTICES: Nevada law requires a five-day notice to the tenant, informing the tenant that the tenancy-at-will is ending and instructing the tenant to leave, followed by a second five-day Notice to Quit for Unlawful Detainer (after the first notice period has elapsed) that tells the tenant to leave because the tenant’s presence is now unlawful.
What, exactly, is a “tenancy-at-will”? A “tenancy-at-will” is the type of tenancy that exists when the tenant (known as the “tenant-at-will”) occupies the premises with the consent of the landlord (either express or implied) for an indefinite period of time with no periodic rent paid or reserved, where the tenancy can be terminated at any time at the will of either party. (See Baker v. Simonds, 79 Nev. 434, 386 P.2d 86 (1963); 49 Am. Jur. 2d, Landlord and Tenant § 118.) An example of a tenancy-at-will might be where a homeowner allows a guest to stay with the homeowner without paying rent. The guest enters the property with the owner’s permission. The guest can leave at any time, and the owner can ask the guest to leave at any time. In other words, either party can terminate the tenancy at their will.
NO CAUSE NOTICES: Nevada law requires a thirty-day notice to the tenant (or a seven-day notice if the tenant pays rent weekly), followed by a second five-day Notice to Quit for Unlawful Detainer (after the first notice period has elapsed) instructing the tenant to leave because tenant’s presence is now unlawful.
When can a landlord use a “no cause” eviction notice? A landlord can use a “no cause” notice ONLY after the tenant’s lease has expired or if there is no lease agreement. (NRS 40.251(1)(b)(1).) Use if rent is paid. Does not apply if no rent is paid, see Tenancy at Will.Must the landlord give the tenant an additional thirty days on the property if the tenant asks for it? Only if the tenant is sixty years old or older or has a physical or mental disability, requests the additional time in writing, and provides documentation proving tenant’s age (such as a driver’s license) or disability (such as a social security award letter). (NRS 40.251(2).) If the tenant requests the additional thirty days and the landlord refuses, the tenant can file a motion with the court to get the additional time. The court can enter an order allowing the tenant to stay on the rental property for an additional thirty days after the initial thirty-day notice expires (see “Responding to the Notice” above). (NRS 40.251(4).) If the landlord allows the tenant to stay on the property for an additional thirty days (or if the court issues an order allowing the tenant to stay), does the tenant have to pay rent during that time? Unless the court orders something else, the landlord and tenant will continue to have the same rights and obligations that they had before the additional thirty-day period was granted, including any obligations regarding payment of rent. (NRS 118A.310.) If the tenant fails to pay rent, the landlord could serve the tenant with a Five-Day Notice to Pay Rent or Quit and start an eviction based upon tenant’s nonpayment (unless the court has made some order changing tenant’s payment obligation).
NOTICES FOR NUISANCE, WASTE, ASSIGNING/SUBLETTING, UNLAWFUL BUSINESS, or DRUG VIOLATION: Nevada law requires a three-day notice to the tenant that describes the alleged nuisance, waste, improper assignment/sublet, unlawful business, or illegal drug use, followed by a second five-day Notice to Quit for Unlawful Detainer (after the first notice period has elapsed) instructing the tenant to leave because tenant’s possession is now unlawful.
The three-day notice can be used where the tenant is: Committing or permitting a “nuisance” on the rental property; Assigning or subletting the rental property in violation of the lease; Committing or permitting “waste” (damage or destruction) on the rental property; Setting up or carrying on any unlawful business on the rental property; or Violating a controlled substance law in NRS 453.011 to 453.552 (except NRS 453.336).
What does “nuisance” mean? A “nuisance” is “conduct or an ongoing condition which constitutes an unreasonable obstruction to the free use of property and causes injury and damage to other tenants or occupants of that property or adjacent buildings or structures.” (NRS 40.2514(4).) A tenant can also be evicted for certain drug-related activity (specifically, for any violation of the controlled substance laws in NRS 453.011 to 453.552, except NRS 453.336), even though the activity does not meet the definition of “nuisance.”
When can a tenant be evicted for assigning or subletting? If the lease says the tenant cannot assign the tenant’s interest in the tenancy or sublet the rental property, the landlord can seek an eviction. However, a landlord cannot unreasonably withhold consent to a tenant’s request to assign or sublet the property.What is an “unlawful business”? “Unlawful business” is not defined in the statute (NRS 40.2514), but the term probably means some type of business that is prohibited or strictly regulated under Nevada law. (See Gasser v. Jet Craft Ltd., 87 Nev. 376, 487 P.2d 346 (1971).) It is possible that operating a lawful business might violate a tenant’s lease. But the landlord would probably need to evict the tenant based upon the lease violation (NRS 40.2516), not a nuisance.When is a tenant “committing or permitting waste” on the property? “Waste” is generally some harmful or destructive use of the property by someone in rightful possession that decreases the property’s value. “Committing waste” means that a person is doing something or taking some action that is causing harm to the property. “Permitting waste” means that a person is failing to prevent or affirmatively allowing harm to the property.
LEASE VIOLATION NOTICES:
Nevada law requires a five-day-notice to the tenant that describes the lease violation and directs the tenant to either “cure” (fix) the violation or leave, followed by a second five-day Notice to Quit for Unlawful Detainer (after the first notice period has elapsed) instructing the tenant to vacate because their possession is now unlawful. Can the tenant “cure” (correct) the lease violation in order to avoid an eviction? After the tenant receives the Five-Day Notice to Perform Lease Condition or Quit, the tenant can “cure” the lease violation (in other words, perform the lease condition or correct the lease violation), assuming the lease violation is something that can be performed or corrected, in order to stay on the rental property. From the date the notice is served, the tenant has only three judicial (business) days to “cure” (correct) the lease violation. (NRS 40.2516.) After the tenant fixes the problem, the tenant should give written notice to the landlord that the lease violation has been cured.
4 DAY NOTICE TO SURRENDER (UNLAWFUL OCCUPANTS/SQUATTERS) This section does not apply if there has ever been a landlord-tenant relationship between the parties! An owner can move forward with the removal of an unlawful, unauthorized occupant through a civil process, whether or not an arrest has been made. If the owner decides to move forward with removal of the unlawful or unauthorized occupant, the owner can serve one notice on the occupant. Nevada law requires a 4-day notice to the occupant, instructing the occupant to surrender (leave) the property.
ALL NOTICES ARE SERVED/POSTED THE NEXT BUSINESS DAY
After filing with the court: If no answer was filed by the tenant, a Complaint for Summary Eviction must be filed. After judicial review an Eviction Order may be granted and sent to our office. You will be given an “Instructions to Constable” form and directed to return to our office to pay the lock-out fee. If a timely Answer was filed by the tenant, both the landlord and tenant will receive a court date scheduled by the Justice Court. A hearing will be held to determine the next course of action. If an Eviction Order is eventually granted, and you did not receive an “Instructions to Constable” form, you will need to get this from the Court prior to coming to our office to pay the lock-out fee. We cannot process your eviction without receiving the “Instructions to Constable” form and the appropriate lock out-fee.
Motion to Stay or Motion to Set Aside the Eviction Order
If the tenant files a Motion to Stay or a Motion to Set Aside the Eviction Order, please note the Justice Court does not contact the landlord to notify them. While the tenant is responsible for serving the motion, it is up to the landlord to search the Justice Court Public Access site to see if the tenant contested the eviction notice. If a Motion is filed, the judge will render a decision on the Motion or decide a hearing is necessary. The landlord will need to check the status of any Motion on the Justice Court Public Access website to see what decision the Judge has rendered. In the case of a hearing being ordered, both the landlord and tenant will be notified to appear in Court. Please note that we cannot complete an eviction if it has been ordered stayed. The tenant may also contest a denial by appealing to the District Court.
After our office receives the Eviction Order/Day of Lockout: Once we receive the order from court, the eviction notice will be posted the next business day and we will lockout the property the following business day. On the day of the lockout, the deputy will contact you no later than 11:00 am to schedule the lock change. If you are hiring a locksmith, you must have them ready to change the locks at the scheduled time to avoid cancellation of the lockout. If you are changing your own locks, you must have your locks ready and be prepared to change the locks. If you do not have a key to the property or are unsure of how you will be entering the property on the day of the lock change, please contact a locksmith before your scheduled time to avoid cancellation. If you need assistance in contacting a locksmith, our deputies or office can assist in doing so.
The deputy will contact you between 8 a.m. and 11 a.m. the day of the scheduled lockout to set up a time to meet. If we are unable to contact you of if your eviction is rescheduled due to you not being ready to complete the eviction, you may be required to pay up to an additional one-half of the original fee for the eviction to be completed. If you do not comply with meeting our deputy to carry out the order, it will be cancelled and the court will be notified of the cancellation. If a delay occurs due to a mutually agreed upon reason, or due to a reason beyond our control, you will be contacted and notified, and will not be charged an additional fee when the order is completed. Prior to the completion of the eviction, our deputy will walk the property and ensure it is secured. Locks must be changed at the time our deputy affixes a seal on the door to the premises. This is not an option when we perform an eviction and lock-out.
Our deputy must witness and verify the lock is changed and may only apply the seal themselves when the eviction is completed. Always use good judgment and wait for the Deputy to arrive before approaching the residence and having contact with the tenant being evicted. If you are aware of any threats toward you, toward law enforcement, or any factors that could pose a risk to someone’s safety, please notify them when confirming the appointment so additional deputies or the LVMPD can be requested to respond and assist in keeping the peace. Evictions can be volatile events and it is critical for your safety, and for the safety of our deputies, that you share any known threats, weapons at the location, or other information you have that could pose a hazard. ALWAYS wait for the deputy to arrive before approaching the residence.
Accepting Payment after an Eviction Order is granted
Once an eviction is ordered, the tenant may not avoid the eviction by making payment on the delinquent rent. If the landlord wishes to cancel the eviction by accepting payment from the tenant before the lockout, the landlord must obtain an order from the court rescinding the eviction order. This can only be done by filing a Motion to Rescind with the Justice Court. If our deputy is at the location and we have not received an order to rescind the eviction, we MUST carry out the eviction as directed by the Court. Failure to comply or meet the deputy will be considered a cancellation and you will not receive a refund.
Motion to Rescind Order for Summary Eviction
The Motion to Rescind must be filed in Justice Court. Once an Order to Rescind is issued, it must be brought to the Constable’s Office for the lockout fee refund. Order must be in this office the day before action is to be taken or the Constable’s Office will be unable to refund. If posting has already been done and you file an order to rescind the day before lockout, only one-half of the refund will be issued (8-12 weeks for refund).
After Eviction Is Complete: When an eviction is complete, Nevada Revised Statute 118.460(1) requires the landlord to safeguard the former tenant’s property for thirty days. It does not need to remain in the unit, and may be inventoried, moved, and stored elsewhere. The landlord may also charge and collect reasonable and actual costs incurred for that inventory, moving, and storage prior to releasing the property to the former tenant. NRS 118A.520 restricts what may or may not be charged for the property.
NEW LAWS PERTAINING TO UNAUTHORIZED OCCUPANTS (SQUATTERS)
New laws pertaining to unauthorized occupants (“squatters”) will go into effect on October 1st, 2015. The Office of the Ex-Officio Constable does not handle criminal enforcement with respect to squatters. To request assistance, please contact the Las Vegas Metropolitan Police Department non-emergency number at 3-1-1 to request assistance. Only use 9-1-1 if an emergency exists. If an arrest is not made in your matter due to the need to investigate further, you may still pursue the new process of “Removal”. It is not an eviction.
The new notice form is a “Notice to Surrender” and it is a 4-Day Notice. We can handle posting these notices for you or you can do them yourself. Forms and information are available from the Civil Law Self Help Center or on their website, under “Removals”. If a Removal is ordered by the Justice Court, our office will handle those removals in the same manner as an immediate eviction. We will not give a 24 hour notice of removal and we will handle those orders the next business day after they are received by our office and the appropriate fees are paid.