What is a Writ of Possession in Real Estate?

A Writ of Possession in real estate is a legal document issued by a court that grants a property owner or landlord the right to regain possession of a property, typically after a successful eviction lawsuit. It is most commonly used in landlord-tenant disputes where the tenant has failed to comply with the terms of the lease, such as non-payment of rent, violating lease terms, or overstaying after a lease has ended.

Once the writ is issued, law enforcement officials (usually a sheriff or marshal) are authorized to remove the tenant from the property and restore possession to the landlord. It is an important step in the legal eviction process and gives the landlord the legal backing to regain control of the property if the tenant does not leave voluntarily after an eviction order is granted.

The specific rules for obtaining and executing a writ of possession can vary by jurisdiction, but here is an outline of the typical process for obtaining a Writ of Possession:

1. Notice to Vacate

Before filing a legal action, the landlord must give the tenant a notice to vacate. This notice informs the tenant of the violation (e.g., non-payment of rent) and provides a time frame to either resolve the issue or leave the property. The notice period varies by jurisdiction (commonly 3, 7, or 30 days).

2. Filing an Eviction Lawsuit (Unlawful Detainer or Forcible Entry/Detainer)

If the tenant does not comply with the notice, the landlord can file an eviction lawsuit in the local court. This is often called an "unlawful detainer" or "forcible entry and detainer" lawsuit, depending on the jurisdiction.
The landlord must present evidence that the tenant violated the lease agreement, and proper notice was given.

3. Court Hearing

The court will schedule a hearing to review the case. Both the landlord and tenant have the opportunity to present their arguments and evidence.
If the court rules in favor of the landlord, the judge will issue a judgment allowing the landlord to regain possession of the property.

4. Judgment and Writ of Possession

After the judgment is entered in favor of the landlord, the landlord can request a Writ of Possession from the court. This is the legal order that directs law enforcement to remove the tenant and return possession of the property to the landlord.
In some cases, there may be a waiting period (typically a few days to a week) after the judgment is issued before the writ can be requested, giving the tenant a final opportunity to leave voluntarily.

5. Issuance of the Writ of Possession

Once the writ is issued, it is given to law enforcement, usually a sheriff or marshal, who is responsible for carrying out the eviction.

6. Enforcement by Law Enforcement

Law enforcement will serve the Writ of Possession to the tenant, giving them a short period (typically 24-48 hours) to vacate the property voluntarily.
If the tenant does not leave, the officers will physically remove the tenant and their belongings from the property, returning it to the landlord.

7. Reclaiming the Property

After the eviction is completed, the landlord regains possession of the property. Depending on the local laws, the landlord may need to handle the tenant’s remaining personal belongings in a specific manner, such as storing them for a period before disposal.

Important Considerations:

Appeal or Delay: The tenant may have a right to appeal the eviction or request a delay in some jurisdictions, which could temporarily stop the issuance of the writ.
Time Frame: The overall timeline for obtaining a writ can vary, but it generally takes several weeks to a few months, depending on the jurisdiction, court backlog, and tenant actions.

What is a Writ of Possession in Real Estate?