Using affidavits in eviction hearing

In a very few courts, affidavits of the landlord are accepted in lieu of live testimony at a possession hearing in an eviction action. An affidavit is a sworn statement signed before a notary. The benefit to the use of an affidavit in an eviction is that the rental manager or owner does not have to appear at the hearing. This can be a very powerful advantage if the landlord lives out of town or even in another state. If the tenant does not show up to contest the eviction, then if your court is one that allows affidavits in lieu of live testimony, then the Court will render a decision in the landlord’s favor.

But not all courts allow affidavits. So before using them, it is best to call up the court to see if they allow them.

Even if the Court does allow affidavits, there can be problems. First, some courts allowing affidavits can be picky over what needs to be contained in the affidavits. At a minimum, the affidavit should be based upon the affiant’s personal knowledge. It should state that the affiant is either the owner of the home or working for or with the owner of the home. It should state that the three day notice was posted on the door on the date shown, that the copy of the three day notice attached to the lease is what was attached to the door, that there was a rental agreement (either oral or written) between the landlord and the tenant, that when the landlord posted the three day notice the tenant was in breach of the lease agreement, that the tenant is still in breach of the lease agreement, that the tenant and/or his/her belongings are still in the premises, that the rental property is located within the jurisdiction of the court holding the hearing, and that the landlord wishes restitution of the premises.

Another disadvantage of an affidavit is delay. Even in courts allowing the use of affidavits in lieu of live testimony, if the tenant shows up and contests the facts in the affidavit, the case cannot go forward. Usually this means that your attorney at the hearing with your affidavit will have to ask for a continuance of the hearing to procure a live witness.

So while affidavits have advantages, they have disadvantages as well.