Law Offices of Heist, Weisse, and Wolk, P.A.
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The proper execution of the Writ of Possession is crucial to a successful and completed eviction action. The key word here is completed. Many property managers make serious mistakes at the end of the eviction action, increasing the liability to the manager and potentially defeating the whole purpose of the eviction action. Most evictions result in the resident vacating the premises within a week or two after the eviction action is filed with the court, and many managers have never experienced the execution of the Writ of Possession.


The Mechanics


Issuance of the Writ: Once a final judgment of eviction is obtained, the manager must decide if a Writ of Possession, hereinafter Writ, is necessary. If the manager decides that a Writ is indeed necessary, the attorney submits the Writ to the Clerk of Court along with a check to the Sheriff’s Department, usually in the amount of $70.00. The Clerk of Court then confirms that a final judgment has indeed been signed by the Judge and “issues” the Writ. The Writ then is taken to the Sheriff’s Department where it is processed by staff of the Sheriff’s Department.


Service of the Writ: Once processed, the Writ is assigned to a Deputy for service upon the resident. The Deputy then takes the Writ and serves it upon the resident, or in the absence of the resident, tapes it to the resident’s door. The Writ informs the resident that he must vacate the premises within 24 hours.


Notification to the manager: The manager is then called by the Deputy who served the Writ and a date and time is set by the Deputy, at which time the Deputy will come and execute the Writ.


The Problem


The purpose of the Deputy’s call to the manager is really twofold. First, it is to inform the manager that the Writ has been served and to schedule the time when the Deputy will meet the manager at the property to give the manager actual possession. Unfortunately, there is another part of the Deputy’s conversation with the manager that causes a problem, and this is the second part of the call. The Deputy, once the date and time for the meeting is set up, will ask the manager if he or she “needs” the Deputy to execute the Writ. If the manager says “no,” the Deputy will return the Writ to the clerk as “unexecuted”, meaning “incomplete”.


Why Does The Deputy Ask The Manager If The Writ Is Wanted?


The Deputy has many Writs to serve on any given day. Often the Deputy’s schedule will get backed up, as some Writs require more time to serve than others. Sometimes a manager is late to meet the Deputy, and the Deputy will wait a small period of time, causing a ripple effect with the schedule. Occasionally the resident must be physically removed from the premises, resulting in further delay. In some instances, serious disputes or altercations occur, and the Deputy must remain on the premises until the resident is finally removed from the premises and no longer poses a danger to the manager, the manager’s workers or the Deputy. The Deputy wants nothing more than to have the manager tell him that the Writ is not needed. It is completely understandable; the Deputy is just trying to get the Writs served for the day. For each Writ that the Deputy can cancel or return unexecuted, this will free up more time for the Deputy to get to the next Writ that needs to be executed.


What Does the Deputy Say?


The Deputy will ask the manager if the resident is still in the rental unit. Often the manager is not sure if the resident is still in possession, and the Deputy gives the manager his cell phone number to call. The manager then goes and checks the property. If the property is empty or appears empty to the manager, the manager will notify the Deputy, and the Deputy will then ask the manager if the Writ execution is “needed”. Often the manager will say “no”, thinking that if the resident is not there anymore, then it must be unnecessary to meet the Deputy.


The Consequences of Telling the Deputy “NO”


If the Deputy is told by the manager that the Writ is not needed, the Deputy returns the Writ to the Clerk’s Office as unexecuted, and it is docketed as such. The resident now officially has NOT been evicted. Yes, an eviction was filed on the resident, BUT the eviction was never completed. The resident has NOT been evicted from the property, even though he may in fact have vacated the premises and will never be seen again.


The resident may return: If the resident were to return, he could simply move right back into the unit, and the manager would need to file additional paperwork with the court seeking a new writ of possession, or possibly even be forced into filing a brand new eviction, starting all over again from scratch. The returning resident would not be considered a trespasser, and the Deputy will do nothing to remove the resident without further order from a Judge.


The resident may return looking for personal property: If the resident comes back to the premises and the manager has disposed of her personal property, she could hold the manager civilly and possibly criminally liable for the loss of the property. The resident could say just about anything as to what was taken and its alleged value, and it would often be difficult to counter these allegations. When the manager fully executes the Writ and subsequently removes the personal property to the property line, the manager’s liability to the resident for her personal property is negated. When the writ is not executed, the potential liability for improper personal property disposition can be very high.


The resident may use the common areas of the property: The manager may observe a former resident using the community pool, exercise room or laundry room. A Deputy may be more reluctant to trespass the “former” resident if the eviction was never completed.


You have wasted $90.00


A Writ costs $90.00, sometimes a bit more and was paid for by your attorney. You will be billed by your attorney for that Writ. By canceling the Writ, you increased your liability, failed to formally complete the eviction, increased the chance of a big problem and wasted $90.00.


When the Deputy Calls, What Should You Say?


When the Deputy calls you to set up the Writ execution time and day, if you are asked if the resident is still there or if you still need the Writ, simply say “YES”. Never quit short of the finish line. It is a sure way to lose the race.

  • The Curable Noncompliance Examined PART 1