akctlib@alaska.net / rev. 06 November 1998
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This booklet describes the procedure for evictions from residential property (houses, apartments, etc.). It does not discuss evictions from commercial or agricultural property or evictions after foreclosure of a mortgage.
The primary focus of the booklet is evictions for failure to pay rent. Evictions for other reasons are not discussed in detail, although the procedure for these evictions is similar.
All rights reserved. Permission to reproduce the contents of this booklet, but not for profit, is hereby granted to governmental and non-profit educational institutions. However, reproduction of any part of this booklet for commercial purposes without the express written permission of the Alaska Court System is strictly prohibited.
CHAPTER I - INTRODUCTION
A. What is "Forcible Entry and Detainer"?
B. Who Can File an F.E.D. Action?
C. How F.E.D. Cases Work (Sequence of Events)
D. Statutes and Court Rules
E. Other Resources
CHAPTER II - BEFORE FILING AN F.E.D. ACTION
A. Termination of Tenancy
B. Service of the Notice
C. Proof of Service of Notice to Quit
D. Providing Tenant with Time to Correct the Problem
CHAPTER III - HOW TO FILE A FORCIBLE ENTRY AND
DETAINER CASE
A. When Can a Lawsuit be Filed
B. Where to File
C. How to File
D. Serving the Defendant
CHAPTER IV - THE EVICTION HEARING
A. When the Defendant Appears at the Eviction Hearing
B. When the Defendant Does Not Appear at the Eviction Hearing
CHAPTER V- DEFENDANT'S RESPONSE TO F.E.D.
COMPLAINT
A. What to Do if You are Served with a Summons and Complaint
B. The Eviction Hearing
C. The Damages Claim
CHAPTER VI - RESOLUTION OF CLAIMS FOR MONEY
DAMAGES
A. If Defendant Files an Answer
B. If Defendant Does Not File an Answer
CHAPTER VII - AFTER JUDGMENT
A. Relief from Judgment
B. Collection of the Judgment
APPENDICES
1. List of Forms
2. Map of Judicial Districts
3. How to Fill Out the Case Caption on a Form
4. How to Subpoena Witnesses
"Forcible entry and detainer" (F.E.D.) is a type of court case in which a property owner seeks possession of the owner's real property (like land, a house or an apartment) currently being occupied by another person or persons. Sometimes this type of case is referred to as an "eviction" or "possession" action.
There are two parts to an F.E.D. court case: the eviction phase and the damages phase. The eviction phase (hearing) happens soon after the case is filed. The damages phase is handled at a later date.
The plaintiff is the party seeking to evict the tenant. The plaintiff can be a property owner. If the property owner is not a corporation, the owner may sign the complaint and appear in court without an attorney. The plaintiff can also be a property manager who is authorized to bring an F.E.D. action on the owner's behalf. However, if the plaintiff is a property manager, a corporation, or a person acting under a "power of attorney," the plaintiff must be represented by an attorney, who must sign the complaint. Christensen v Melinda, 857 P.2d 345 (Alaska 1993). The only exception is a non-profit public housing corporation proceeding under AS 09.45.158, which may appear without an attorney.
The following statutes and court rules govern F.E.D. actions:
The Alaska Statutes and the Alaska Rules of Court are available at court law libraries and at some court clerk offices. They may also be available at public libraries.
The Alaska Pro Bono Program offers free clinics on landlord/tenant law.
Before filing a court action to evict a tenant, the landlord must give notice to the tenant and give the tenant a chance to correct the problems described in the notice. See AS 09.45.100 -.105. This notice is usually referred to as a "Notice of Termination of Tenancy" or "Notice to Quit."
The landlord may use the court form CIV-725 Notice to Quit only when the reason for the eviction is failure to pay rent. If the eviction is for another reason (for example, intentional damage to the dwelling, illegal use of the premises, violation of the lease agreement, or non-payment of utilities), the notice must contain different information, including different deadlines for correcting the problem. (See AS 09.45.090(a)(2), AS 09.45.105 and AS 34.03.220 for information about the different deadlines and the required contents of these notices.) Sample notice forms for the different reasons for eviction are included in the booklet What The Landlord And Tenant Act Means To You described above. It is suggested that the landlord include on the notice the "Landlord's Record of Service" which is on the bottom of form CIV-725.
Service of the Notice to Quit on the tenant is governed by AS 09.45.100, which states in paragraph (c):
A notice to quit shall be in writing and shall be served upon the tenant or person in possession by being
(1) delivered to the tenant or person;
(2) left at the premises in case of absence from the premises; or
(3) sent by registered or certified mail.
The notice is typically delivered in person to the tenant by the landlord or property manager. If the landlord or property manager attempts to make personal service and the tenant is absent, the notice may be left on the premises. This is commonly done by taping the notice to the tenant's front door. Whoever delivers or posts the notice should be available to testify at the eviction hearing. Service by mail is seldom used because the tenant may not pick up the mail or the landlord may not receive the return receipt prior to the hearing.
The landlord must prove to the court that the Notice to Quit was delivered as the statute requires. It is recommended that a record be made at the time of service describing how, when, and by whom the tenant was served. The court form Notice to Quit (CIV-725) provides space for this record of service.
The tenant must be given time to correct the problem before the landlord may file the court case. If the eviction is for nonpayment of rent, the tenant must be given seven days to pay the rent after receiving the Notice to Quit. If the eviction is for another reason, the amount of time will be different. See AS 09.45.090.
Note: If the notice is sent to the tenant by registered or certified mail, the tenant has three additional days to correct the problem. AS 09.45.090(c). Therefore, if the eviction is for failure to pay rent and the notice is mailed, the notice must give the tenant ten days instead of seven to pay the rent.
If the tenant does not correct the problem or move out within the statutory time period stated in the Notice to Quit, a lawsuit can be filed. AS 09.45.110. For example, if the Notice to Quit is for failure to pay rent and the tenant does not move out or pay the rent within seven days, the lawsuit can be filed on the eighth day. (Note: The first day is the day after you hand the notice to the tenant, and you should include Saturdays, Sundays and holidays when you count the seven days. Civil Rule 6.)
The lawsuit to get possession of the property must be filed in the judicial district in which the property is located. Civil Rule 3. A map of the judicial districts is in Appendix 2. If the value of the past due rent and damage to the property is $50,000 or less, you must file your case in the district court. AS 22.15.030(a)(6) and (b). If it is greater than $50,000, you must file your case in superior court.
See Appendix 3 for a sample of how to fill out the top of the forms. Please type or print neatly using black ink when you fill out the forms. The top of the form (called the case caption) remains the same on all documents.
Note: From this point on, the tenant will be referred to as "defendant" and the landlord will be referred to as "plaintiff."
Note: If you are asking only for an eviction and are not seeking past due rent or damages, use form CIV-305, Final Judgment for Possession , instead of the Partial Judgment form.
If the judge signs this form and the tenant does not move out, you will need to arrange with your local law enforcement agency to have the writ served. The law enforcement agency may charge a fee for this.
File the completed forms at your local court and pay the court filing fee. The filing fee is $60 if the amount of money claimed in the complaint is $50,000 or less. The filing fee is $100 if the amount claimed is more than $50,000. You may also need to pay the process server's fee at this time. See section D below on serving the defendant.
The court clerk will schedule a hearing on the eviction phase of the case when the complaint is filed with the court. Civil Rule 85 requires the hearing to be held at least two days after the summons and complaint are served and not more than 15 days after the case is filed in court. The clerk will ask you how soon you think the summons and complaint will be served on the tenant because the hearing cannot be held until two days after they are served.
Note: If the summons and complaint are not served at least two days before the hearing, the judge will probably postpone the hearing. Please see section D.6 for more information.
Have the summons and complaint served on each of the named defendants by a process server or peace officer. (See Civil Rule 4.)
On the date set for the eviction hearing, the judge will ONLY consider the issue of who is entitled to possession of the property. The judge will NOT consider claims for unpaid rent or other damages at this hearing.
The plaintiff must be present in court and must be prepared to prove he/she is entitled to possession of the property. The defendant must also be present if the defendant wishes to offer defenses to the plaintiff's claims. The plaintiff and the defendant can each be represented by an attorney, but it is not required.
Both the plaintiff and the defendant must have all documents and other evidence relating to the eviction portion of the case with them in court. This may include the rental agreement, notice to quit, return of service, and other evidence relating to the reasons for eviction.
If either the plaintiff or the defendant wishes to have witnesses testify at the eviction hearing, that party must arrange to have the witnesses present at the time of the hearing. Permission for a witness to appear telephonically must be obtained from the court prior to the hearing. Both parties can ask the court to issue subpoenas ordering witnesses to appear in court. See Appendix 4 for how to get a subpoena.
The eviction hearing usually proceeds as follows:
If the defendant does not appear at the eviction hearing, the judge may find that the defendant loses the eviction portion of the case by default and order the defendant to vacate the premises. The judge will require testimony to establish proof that the defendant was served with the summons and complaint, that the notice to quit met statutory requirements and the defendant did not correct the problems described. If satisfactory proof is provided, the judge will order the eviction.
Read the summons and complaint carefully. The summons tells you two things: (1) the time and date of the eviction hearing; and (2) the time within which you must file a written answer to the plaintiff's complaint. You should read the booklet entitled, What the Landlord And Tenant Act Means to You. You may want to consult an attorney to determine your legal rights as a tenant. See page 3 for additional resources.
You must attend this hearing if you oppose the eviction. If you do not attend the hearing, the hearing will proceed without you and the judge will probably order that you be evicted. The eviction hearing is described in more detail in Chapter IV.
Even if you do not oppose the eviction, you may disagree with the amount of money that the plaintiff is claiming in the complaint. To contest the claim for money, you must file an answer with the court within 20 days after being served with the summons and complaint. If you have defenses or counterclaims against the plaintiff, these must be described in the answer and will be heard along with the plaintiff's claims at the damages hearing.
You may use court form CIV-735 Answer To Claim For Damages In F.E.D. Action.
Fill out the form as follows:
After completing the Answer, you must file the original at the court. You can file it in person in the clerk's office or mail it using first-class mail. If mailed, be certain that it arrives within 20 days after you receive the summons.
If you do not file a written answer within 20 days, the plaintiff may ask the court for a default judgment. Note: Even if you objected to the damage claim at the eviction hearing, you must still file a written answer with the court. Failure to do so may result in a default judgment against you. See Chapter VI, Section B and Civil Rule 55.
This portion of the F.E.D. action is a formal civil action and is governed by the civil rules. Contested civil actions can be very complicated, so it might be helpful to consult an attorney, particularly if the other side is represented by an attorney. This chapter outlines the basic steps necessary to resolve a claim for damages in a F.E.D. action.
The procedure for resolving the plaintiff's claim for money damages depends on whether the defendant has filed an answer to the complaint.
If the plaintiff's complaint asks for money damages (such as for unpaid rent, damages to the premises, etc.) and the defendant files a written answer within 20 days after being served with the complaint, there will need to be a hearing to decide the amount of damages owed.
If the defendant's answer includes a counterclaim, the plaintiff must respond to the counterclaim within 20 days after service of the answer. See Civil Rule 12(a). The defendant's counterclaim will be decided at the same hearing as the plaintiff's claim for damages.
Either party can request that a damages hearing be set. See Civil Rule 40 (b). The form for requesting this hearing is called a Memorandum to Set Civil Case for Trial (CIV-200). The form can be obtained from the clerk's office.
See Appendix 3 for a sample of how to fill out the top of the form. Please type or print neatly using black ink when you fill out the form.
If the other party in the case objects to any information in the Memorandum to Set, that party must file written objections with the court and serve a copy on all other parties. This must be done within ten days after the Memorandum was served.
The court will set a date and time for the hearing and will send notice of the hearing to all parties through the mail.
Both parties must have all written documents relating to the case with them in court. This may include receipts for rent, invoices for repairs, photographs, etc.
If either party wishes to have witnesses testify at the damages hearing, that party must arrange to have the witnesses present at the time of the hearing. If a party wants to appear telephonically or have a witness appear telephonically, permission must be obtained from the court prior to the hearing.
The parties can request that the court issue subpoenas ordering witnesses to appear in court. See Appendix 4 and Civil Rule 45.
The damages hearing will generally proceed as follows:
If the defendant does not file an answer, the plaintiff can ask the court for a judgment by default against the defendant. (Civil Rule 55) The procedure for getting a default judgment depends on whether or not the defendant appeared at the eviction hearing.
If the defendant does not file a written answer to the complaint and did not appear in court for the eviction hearing or file any other written response with the court, the procedure for obtaining a default judgment is as follows:
Case Caption Section. Fill out the top of the form as explained in Appendix 3.
Affidavit Section. The numbered instructions below correspond to the numbered paragraphs in the affidavit section.
Example:
Reason Amount
Rent at $400 a month for June and July $800
Replace window screens $100
Cleaning by Merry Maids Cleaning
Service at $30 per hour $90
Total Due: $990
You must attach documentation to support all claims. In the above example, the following should be attached: rental agreement, invoice from hardware store and/or window repair person, and the invoice from the cleaning service. If you are charging for time you spent cleaning or making repairs, you should itemize your hourly rate and the hours you worked.
If there are any deficiencies in your documents, the court will notify you. You must correct the problem or the court will not process your application for entry of default. Your case may eventually be dismissed for lack of action.
Occasionally the court will have questions or need additional information regarding the damages you are claiming. The court may schedule a damages hearing to address these questions. You will be notified of the hearing date by mail. At this hearing, you will be asked to provide additional documentation or testimony under oath about the damages.
If the defendant does not file a written answer to the complaint but did appear in court for the eviction hearing or filed some other type of written response with the court, the procedure for obtaining a default judgment is the same as section 1 above, EXCEPT:
Before you file the Default Application with the court clerk, you must send a copy of the application (and all its attachments) by first-class mail to each defendant named on the application and complete the Certificate of Service box on page 2 of the application form.
If you think a default judgment was improperly entered against you, you can ask the court to set aside the judgment. To do this, you must file with the court a request to set aside default judgment. Your request must be filed within a reasonable time after the default judgment was entered against you. Civil Rules 55(e) and 60(b). You must also serve a copy of your request on the opposing party in the case and show proof to the court that you did this. There is currently no court form for this request, however, you can review Small Claims form SC-24 for an example of what a request should look like.
In your request to set aside default judgment, you must usually show two things:
The court will allow the other party an opportunity to respond in writing to your request. The court will review both statements and notify you in writing of its decision. The court will not set aside a default judgment unless you give a good reason.
Filing a request to set aside a default judgment does not automatically stop the judgment creditor from having a Writ of Execution issued to collect the judgment. If you wish to keep the creditor from having a Writ of Execution issued against you, you must (1) file a motion requesting a stay of execution, and (2) file a bond or make a cash deposit with the court in the amount of the judgment, plus interest. You should contact the court for further information if you wish to post a bond.
If either party believes the court applied the law incorrectly or reached a decision which is not supported by the evidence presented, that party may appeal the judgment. Appeals are complicated, and you should consider seeing a lawyer if you want to appeal.
An appeal does not automatically give you a new trial . The court that hears your appeal will not accept any new evidence. The only information the court will consider on appeal is (1) the tape recording of the trial, (2) any items presented as evidence at the trial, (3) the documents in the court file, and (4) legal memoranda.
If your case was heard in the district court, your case will be appealed to the superior court. If your case was heard in the superior court, your case will be appealed to the supreme court.
Your appeal to either court must be filed within 30 days from the date the judgment is distributed.
For information about how to appeal your case to the superior court, ask the court clerk for the booklet Instructions For Filing An Appeal From The District Court To The Superior Court (AP-200).
There are currently no court forms or instructions regarding how to file an appeal to the supreme court. For information about this type of appeal, see the Rules of Appellate Procedure in the Alaska Rules of Court.
NOTE: Filing an appeal does not automatically prevent the plaintiff from evicting the tenant or from enforcing (collecting) a money judgment. A tenant who appeals the court's eviction judgment can ask the court to allow him/her to stay on the premises until the appeal is heard. (The court may require that the tenant post a bond with the court pending a decision on the appeal.) For information about how to postpone enforcement of the judgment during an appeal, see the AP-200 booklet mentioned above.
The court does NOT collect the judgment for the prevailing party. If the judgment debtor (the losing party) will not pay voluntarily, the judgment creditor (the party who wins the money judgment) may ask the court to issue a Writ of Execution.
A Writ of Execution is a court order directing a peace officer or process server to take property of the debtor to pay the judgment. Property can include money, bank accounts, wages, personal and real property or any other asset belonging to the debtor which has value.
For information about this, ask the court clerk for a copy of Execution Procedure: Judgment Creditor Booklet (CIV-550).
For information about the rights of the debtor, ask the clerk for a copy of the Judgment Debtor Booklet (CIV-511).
LIST OF FORMS FOR F.E.D. CASES
JUDICIAL DISTRICT MAP You'll need to download a free copy of Adobe Acrobat Reader in order to view and print the map.
HOW TO FILL OUT THE CASE CAPTION ON A FORM
Please type or print neatly using black ink when you fill out the forms.
Fill in the tops of the forms as shown in the following sample:
IN THE DISTRICT/SUPERIOR COURT FOR THE STATE OF ALASKA
AT _______________
)
Peter Propertyowner )
)
)
Plaintiff, )
vs. ) Case No. _______________________ CI
)
Tom Tenant and ) COMPLAINT FOR FORCIBLE ENTRY
Teresa Tenant ) AND DETAINER
) (Seeking Eviction, Rent and Damages)
Defendants. )(AS 09.45.070 et seq; AS 34.03.010
) et seq; Alaska Civil Rule 85)
-----------------------------------
On the top line, cross out "SUPERIOR" if you are filing in the district court.
On the "AT" line, fill in the city where the court is located (the court where you will file your complaint.).
On the "Plaintiff" line, fill in the name of the owner of the property or the person authorized to bring the action.
On the "Defendant" line, fill in the names of the tenants.
Do not fill in the "CASE NO." line. The court clerk will fill that in.
A subpoena is a court order requiring a person to appear and testify in court. See Civil Rule 45. If you believe a witness may not come to court when you ask, you should have a subpoena issued by the court. If you do not subpoena a witness and the witness does not appear at the hearing, you may be required to present your side of the case without that witness.
There are two types of subpoenas used in F.E.D. cases:
You must pay a witness fee to each witness you subpoena. Witness fees are $12.50 if it will not take more than 3 hours of the witness' time to attend the trial or hearing (including travel time). The witness fee is $25.00 if it will take more than 3 hours of a witness' time to attend the trial or hearing (including travel time). In addition, witnesses who travel more than 30 miles from their residence must also be paid round trip mileage at the rate allowed for state employees (currently 32.5 cents per mile.) Administrative Rule 7.
A check made payable to the witness for the correct fee must be attached to the subpoena when it is served on the witness.
Service of Subpoenas.
A subpoena can be served by one of the following methods:
A subpoena can be served by registered or certified mail only if it is mailed by the court. To have a subpoena served by certified mail, you will need to provide the following to the court clerk:
The clerk will mail the original subpoena to the witness and retain a copy for the court file. You should bring the certified mail/return delivery receipt with you when you come to court to prove that the witness was served with the subpoena.
NOTE: You will need to contact the post office to determine the current postage required for certified mail. You will also need to contact the clerk's office to determine the current fee charged by the court to serve the subpoena by certified mail.
A subpoena can be served on a witness by any person over the age of 18 who is not a party to the action. This includes licensed process servers and police officers.
Instructions for contacting process servers are explained in Chapter III, Section D, of this booklet. If you choose to have a police officer serve the subpoena, you must contact your local police department for instructions and fee information.
The person who has served the subpoena on the witness must provide proof of the service by making a written statement of the facts (such as the date and time of service, the document handed to the witness, the name of the person serving the subpoena, etc.) and signing it. The signature must be notarized. You should bring this written and notarized proof of service with you to court.