One of the most frequently asked about civil procedures is the eviction process. The Sheriff's Office is prohibited from providing legal advice on how to proceed, but it can give information about its involvement in the process. For detailed information or legal advice, please contact an attorney, or follow references provided at the end of this article.
There are three steps involved in a legal eviction. They are listed in order.
- Notice to Quit
The first step in this process initiated by the landlord can be a three or thirty day notice. The landlord may desire to have the Sheriff's Office serve this writ. Fees for this are the same as standard service fees for other types of writs. However, there are no statutes that dictate a particular type of service or return day. Sheriff's Office policy is to attempt service as soon as practical, and service could be either personal, residential or may be accomplished by posting a notice at the residence. The Sheriff's Office does not provide forms for these notices, nor give advice as to their content. It should also be noted that this notice is NOT a court document. It does not order their removal. It is simply telling the tenant that if they have not evacuated the property by the given day, the case will be taken to the court for eviction.
After the service of the notice, should the tenant fail to move, the landlord may then commence suit in one of the courts. The Summons, or notice of suit, may be sent to the Sheriff's Civil Division for service. It contains a time and date for trial and must be returned to the court within 3 days of its issuance. Service may be personal or residential. If the landlord prevails at trial, a Writ of Restitution may be issued. Service fees are required for service prior to receiving such writ from the court.
- Writ of Restitution
A Writ of Restitution directs the Sheriff to remove the defendant and restore the premises to the plaintiff. It is the policy of the Sheriff's Office to execute such writs by attempting to obtain voluntary compliance from the defendant in a fashion which minimizes any unnecessary hardship. In the absence of compliance, the Office will execute the writ by removing the occupants personally and/or by changing the locks on the premises. The Office will remove personal property only when specifically directed to do so by court order.
The Writ of Restitution must be executed within ten days of issuance. Because of this relatively narrow window, it will be executed without delay. Service will not be made, however, until the plaintiff has deposited sufficient funds with the Sheriff's Office to cover the reasonably anticipated costs and fees. To expedite the process, the plaintiff should provide a contact name and phone number.
Unless some other type of action is specified in the writ, a Writ of Restitution will be executed as follows:
- Deputies will contact the plaintiff or the plaintiff's attorney to set up a time/date for restoring the premises to the plaintiff. Deputies will determine whether the plaintiff desires to change the locks himself/herself or if the Sheriff's Office Civil Division will contact its locksmith to do the work. It is required that the plaintiff or its representative be present at the time of the lockout to take possession of the premises. Should the plaintiff choose to change the locks, the Sheriff's Office is not obligated to stand by while the residence is being secured.
- Deputies will go to the residence listed on the writ and serve the defendant's copy. This may be by personal, residential, or posting service. If no one is home or doesn't answer, the paper may be posted prominently on the residence, most often on the front door. In addition to the Writ, a separate form provided by the Sheriff's Office, or a hand written notice on the back of the Writ, will designate a lockout date/time and a brief explanation of consequences if compliance is not met.
- By Sheriff's Office policy, three day's notice, barring exigent circumstances, is given to allow the defendant time to vacate the premises with his/her property. Three days is generally recommended to prevent the plaintiff from having to dispose of property under the Disposition of Personal Property Landlord and Tenant Act. Generally, the Sheriff's Office will not execute Writs of Restitution on weekends or holidays.
- On the date/time of the lockout, the deputy will arrive at the location and remove any occupants from the premises. Occupants will be advised of trespassing violations they could be subject to if they return. Persons still having property in the residence will have to contact the plaintiff to arrange for removal of the property. Deputies will not take part in the disposal of property. Provisions for such are set out in the Disposition of Personal Property Landlord and Tenant Act.
- Whenever deputies have removed occupants from a premise, they shall supply the occupant with a short period of time to obtain vital personal effects, or obtain such effects for the occupant. Deputies will take action to protect the person removed, if necessary, due to age, infirmity, mental or emotional condition, illness or disability as provided by law.
- If the premises involved are rental properties such as a house or an apartment, and the premises have been turned over to the plaintiff, the deputy has no further obligation. If the Sheriff's Office has arranged for a locksmith to change locks, a bill will be obtained from the locksmith before the deputy leaves. The plaintiff will have placed a deposit at the Sheriff's Office or have enough money in an attorney account to cover the lock change. The deposit is generally $150.00.
- If the Writ is for a mobile home not owned by the mobile home park, a sale of the property will be set up. Keys for the mobile home will remain with the mobile home park in the event that emergency entry needs to be made during the time prior to the sale. In the sale of mobile homes, the bill of sale only reflects the transfer of the defendant's interest in the property, and is not an implied or actual title to the property. All sales will take place at the east doors of the Justice and Law Enforcement Center, 575 So. 10th Street, Lincoln, NE 68508.
The Nebraska State Law Library and some office supply stores may have forms and additional information to assist you.
Following is a list of statutes that are applicable to these proceedings. They are in no way all-inclusive to this subject and are not to be construed as legal advice.
Nebraska Statutes are available at http://nebraskalegislature.gov.
25-21,219 through 25-21,235 : - Forcible entry and detainer
76-1401 through 76-1449 : - Landlord and Tenant Act
76-1450 through 76-14,111 : - Mobile Home Landlord and Tenant Act
69-2301 through 69-2314 : - Disposition of Personal Property Landlord and Tenant Act