Idaho Eviction Process
Step One: Providing Notice
You cannot lock a tenant out. All “Self-Help” remedies expose the landlord to liability.
You must follow the procedures set forth in the Idaho Code. Other procedures may be established which do not conflict with state law. They must also be enforced uniformly.
Types and Minimum Notice Required: (For leased property 5 acres or less in size)
- Holdover tenant (lease has expired) / 30 day notice.
- Breach of lease conditions / 3 day notice.
- Default in rent payment / 3 day notice. (Must serve within one year of due date).
- Waste and damage to premises or unauthorized subletting / 3 day notice.
- Controlled substance violations. (No notice unless a government subsidy is involved).
These are minimum periods required by law. Weekends and holidays are excluded for 3 Day Notices. Therefore, a tenant will have 3 business days to correct lease violations requiring a three day notice. The parties may extend the time available to correct a lease violation by negotiating a different term in the lease.
- Lease Violation Notice (If violation is one such as disturbing the peace, no time period is necessary. The purpose is to put a tenant on notice of violations to build a tenant history for purposes of lawfully terminating a tenancy at a later date).
Notice of the Default:
- Names of all known tenants plus “all guests and/or subtenants”;
- Nature of default (specify the problem in detail);
- Time to cure default or vacate the premises;
- Liability for attorney fees and costs (Idaho Code § 6-324 must be included in Notice);
- Signed by lessor and showing the statutory method of delivery or other service;
Delivery: These are in order of statutory priority for all notices.
- Personally upon a tenant (home or business); or
- Leave with person of suitable age at either place and mailed first class mail postage prepaid (but not certified mail or by some other method of mailing unless required by your lease), to a tenant at place of residence; or
- Posted conspicuously on property and mailed, to tenant at leased premises.
If the default is completely cured within the 3 day period, the lease is reinstated until the next default occurs. (If a 30 day notice to vacate is combined with 3 day notice on a month-to-month tenancy, you can still commence an eviction after the 30 day period as a holdover tenant).
Note: Acceptance of partial payments can be treated as a waiver unless you are clear in your intent to continue the eviction.
Step Two: The Eviction Trial
- Failure to Pay Rent: If the default is not cured within the time provided by the notice, you can commence an “Unlawful Detainer,” or eviction, action for restitution of the premises.
- Summary or Expedite Eviction Proceeding:
Over the last decade, the Idaho legislature significantly amended Idaho’s Landlord-Tenant Act to allow expedited evictions, utilizing the summary eviction proceeding for restitution for non-payment of rent, for post-foreclosure evictions and for evictions related to the “unlawful delivery, production or use of a controlled substance on the leased premises during the term for which the premises are let to the tenant.” For drug evictions, the landlord must have “reasonable grounds” to believe that these acts are occurring. Again in this instance, it is not necessary to provide the tenant an opportunity to cure the default.
- A trial is set within 12 days of filing the Complaint. However, the tenant must also be served at least 5 business days in advance. If not, a new trial date is scheduled.
- Attorney fees and court costs will be allowed in addition to restitution of the premises only if notice under Code § 6-324 was included in the Notice to tenant.
- In the context of an expedited proceeding a landlord cannot recover a judgment for rent or other damages. A separate lawsuit must be filed.
Other breaches, holdover tenants, and damage suits: If default is not cured within the time provided by the notice, you can commence an eviction action for restitution of the premises. No quick trial is allowed. A standard summons is served allowing the tenant 20 days after service to answer if he or she contests the action.
Mitigation: The Landlord always has a duty to mitigate (lessen) damages.
Treble Damages: (Idaho Code § 6-317) These are possible but unlikely unless the damages were caused by malicious acts of the tenant.
Step Three: Regaining Possession of Your Rental
If judgment is granted for the landlord, the Clerk or the Court will issues a Writ of Restitution directing the County Sheriff to restore the property to you.
The Writ is effective immediately, but the Sheriff’s practice is to allow the tenant 2-3 days to move. However, you can insist on immediate action by the Sheriff.
Before the Sheriff will move a tenant, he requires advance payment of moving costs. The deposit ranges from $800 in Canyon County, $1,000 to $1,500 in Ada County, and as much as $7,500 in other counties, depending on the amount of property on the premises. If the Sheriff has to move the tenant’s property, he will usually auction it within 30 days and apply the proceeds from the sale against the moving and storage costs and any amount in the judgment.
Third Party claims to property are the biggest risk as you may end up being liable to someone else for selling property that did not belong to the tenant. There is a separate procedure for resolving these claims.