In an apparent rush to be as unfriendly to tenants as possible, the Tennessee Legislature has upset lawyers for both tenants and landlords.
I’m talking about the new Tenn. Code Ann. § 27-5-108 (d), which became effective July 1, 2023.
The prior version said:
(d) If no appeal is taken within the time provided, then execution may issue.
The new version says:
(d)(1) Except as provided in subdivision (d)(2), if no appeal is taken within the time provided, then execution may issue.
(2) For a writ of possession, if no appeal is taken within the time provided, then execution shall issue by operation of law.
Do you see the difference? Under the new (d)(2), a writ of restitution “shall” automatically issue after an eviction judgment.
Some quick background: A “detainer /eviction judgment” is the court order that says a landlord is entitled to possession of the property, usually due to lack of payment of rent or some other breach under a lease. A “writ of restitution” is the subsequent legal paperwork that directs the Sheriff to physically remove a person (and all their stuff) from the property.
To be clear, the entry of the former one does not necessarily require the issuance of the latter.
In most cases, no Writ is ever needed. Most tenants act fast in response to the mere threat of having the Sheriff show up, unannounced, with hired labor to physically remove them and move all their possessions to the street.
Most landlords reach out to the tenant and do everything in their power to accommodate a reasonable and peaceable move-out, to avoid the cost and mess of having the Sheriff throw out all of a tenant’s stuff.
And, sure, not all evictions are the same, and there will always be a few–the “worst of the worst”–where the Sheriff’s help is needed. But those are a rare exception.
As a landlord-tenant lawyer, of the 500 eviction judgments I’ve won, I’d guess that I’ve issued less than 10 writs of restitution.
Why on earth did the 2023 Tennessee Legislature decide that each and every eviction judgment needs this immediate and atomic action? This makes no sense, as a matter of policy or practical application.
Tenant lawyers hate it. Landlord lawyers hate it. I’m guessing the Sheriff’s Office hates it (or will hate it).
And, worse, there’s no way around the law. The Davidson County Circuit Court has already provided notice that this will happen on all eviction judgments.
Just today, I filed an eviction judgment with the Court and, as part of the filing process, I was forced to also to pay the $67.00 Writ of Restitution fee. Neither I nor my client want that process to issue.
The only people who think this is a good idea is the Tennessee Legislature.
Creditors Rights 101 