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The Eviction Trial

By Lane V. Erickson, Attorney

On of the most important steps in the judicial process of an eviction is the eviction trial. In circumstances where the landlord has properly served the tenant the required Notice, and the tenant fails to appear or to file a response, the landlord will obtain a judgment by default. This is what occurs in about 90% of all cases. In the remaining 10% of cases, the eviction trial occurs.

In the eviction trial, a landlord has the burden of proving everything necessary to obtain a judgment against the tenant. In essence, a landlord must provide admissible evidence that everything claimed in his complaint is true. This is usually accomplished through the landlord’s own testimony and his presenting to the court evidentiary documents including the following:

(1) a written rental agreement;

(2) an account statement for the tenant showing unpaid rent;

(3) a copy of the written Notice of Eviction;

(4) an affidavit of service showing that the Notice of Eviction was properly served upon the tenant; and

(5) an affidavit of service showing that a copy of the summons and complaint were served upon the tenant. When a landlord has provided these documents and his testimony concerning the matter he has usually met his burden of proving his case.

Once the landlord has provided admissible evidence sufficient to meet the burden of proof, the burden then shifts to the tenant to show why he should not be evicted.  Most tenants have no evidence to present at this point. However, occasionally a tenant may present evidence that the landlord has not properly accounted for their payments. The most effective way this is done is for the tenant to provide to the Court a copy of a check payment that the landlord has not accounted for.

Additionally a tenant may offer proof that they were not properly served with either the Notice of Eviction or the summons and complaint. This is a tougher one for the tenant to prove. This is because the landlord usually provides an Affidavit of Service which is self-proving admissible evidence of service of the notice;

A tenant may also present evidence of breach of warranty of habitability by the landlord by presenting to the court a copy of a written notice the tenant provided to the landlord of problems that exist with the premises as well as photographs or video showing that the problems have not been fixed by the landlord. In this instance, the court will then allow evidence from the landlord and the tenant to determine the amount the rent should be set off and whether, after the set off, the tenant would still be in default for non-payment of rent.

If you have any questions about the eviction process, we can help. Call us toll free at 877-232-6101 or 208-232-6101 for a consultation with Lane Erickson and the Racine Olson team of Landlord and Tenant Law and Real Estate attorneys in Idaho. You can also email Lane Erickson directly at We will answer your Idaho Landlord and Tenant Law and Real Estate questions and will help you solve your Idaho Landlord and Tenant Law and Real Estate needs.

This website includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer for advice on specific legal issues.

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