Business Law, Civil Law

Can I act as my own lawyer in an eviction case

The answer to this question depends.  If you directly own the property which you’re trying to evict someone from, the answer is yes you can act as your own eviction lawyer.  However, if you run a residential rental business and your property is owned by an LLC or other business entity that isn’t you personally, the answer is a deep and resounding NO.

The same is true for someone who is trying to evict someone from property that is owned by a trust, even if you are the trustee, one of the beneficiaries of the trust, or both.

Well, why can’t I?

In Arkansas, people are allowed to proceed in court on their own behalf, meaning you can be your own lawyer even if you don’t have a law license (they call this “pro se”).  The law considers LLCs, other business entities, and trusts to be separate entities from the people who own them.  That means that if you are the only owner of an LLC that owns residential rental properties, you technically don’t own the rental properties directly, and so you can’t act as your own eviction lawyer to try and evict someone from one of those properties.

Again, the same thing is true of someone who is the trustee of a trust.  You don’t own the properties in the trust, the trust technically does.

What’s the point?  Why is this important?

If you are trying to evict someone living in property owned by an LLC, another business entity, or a trust and you file the complaint, you are engaging in the “unauthorized practice of law.”  Since you’re filing the complaint on someone else’s behalf (the LLC’s or the trust’s), you’re technically representing someone else even though you may be the only owner of the LLC or one of the beneficiaries of the trust.  I know, it seems stupid. Even though the company or trust is what some people might call a “legal fiction,” meaning it doesn’t exist out there in the real world, it definitely exists for the purposes of taking legal action.  

The main consequence of practicing law without a license is that anything you file with the court is considered a “nullity.”  That means it gets treated by the court as if it doesn’t exist. The consequence of this is pretty staggering. It means the judge can’t give you what you asked for and you wasted your time and money writing a complaint and paying a filing fee and other court costs.  Then, if you still want to get the person evicted, you have to hire an eviction lawyer and start the process all over.

There are good reasons for this.  Lawyering ain’t easy. Even when people are technically allowed to act as their own eviction lawyer, they don’t have the training they need to mind the fine details of practicing law.  While you can definitely look the law up, the rules of civil procedure are technical and unforgiving. Cases are won and lost every day on technical issues that have nothing to do with whether you’re actually entitled to get what you ask the court for.

I’ve seen pro se individuals lose eviction cases because they didn’t properly serve the person they were trying to evict.  In every civil case, you have to follow specific rules for delivering a summons and a copy of the complaint to the person you’re suing.  It has to be mailed in a specific way or delivered by a specific person, and if you don’t do that, it doesn’t matter that the person actually knows they’re getting sued and shows up to court on the day of the hearing.  

You read that right.  You can notify someone in reality that they have to show up to a hearing to avoid getting evicted, but if you do it the wrong way and they still show up, the judge can’t evict them because you don’t have “good service.”

So, the best thing to do, even if you own the property yourself, is to get an eviction lawyer who knows how to do evictions.  The good news is that they’re cheap. Instead of wasting your precious time and money, give us a call and let one of our experienced lawyers do it the right way the first time.  

Wilson and Haubert offers a unique service to landlords, property management companies, and other owners or managers of residential rental property.  For a low monthly fee, we will (as needed) review your real estate purchase agreements, form LLCs, review and revise management agreements and leases, review advertisements for FHA compliance, and meet with you on a semi-annual basis to discuss other legal issues arising from your rental business.  If you have an ongoing need for evictions (unlawful detainers), we can also make that part of your monthly fee or do them separately on an as-needed basis. Click here to be connected with an attorney who can explain the finer details of this program.

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