A writ of possession is a court order that grants the right of possession in any tangible property to a party that is not currently in possession. The writ is to be delivered to the party currently in possession of the property by a sheriff who will enforce a transfer of possession to the rightful party. In order to obtain this type of order, the party must file a motion in the jurisdiction in which the property is located and the court must find that the circumstances meet the requirements for its issuance. In the event the person on whom the writ of possession is served wants to fight its issuance, he or she may file an emergency motion to stay the writ in the court in which the writ was issued.
A writ of possession may be issued to anyone who is unlawfully in possession of the property of another. Such writs apply both to circumstances where someone unlawfully remains in a residence owned by another — e.g., after an eviction — or if that person retains possession of an item that belongs to another. For example, if a person borrows an item from someone else, and the rightful owner asks for its return but his or her requests are ignored, then the owner may seek an issuance of a writ of possession for the item’s return. The requirement is simply that the person who files for the possession writ has the right to immediate possession of property that is wrongfully being withheld by another.
Generally, if a writ of possession is issued, it will be posted on the door of the party who is in unlawful possession of the property. If the item is not returned or the party does not move off the property within a period of time, usually 24 hours, then a sheriff will appear at the residence after that stated period of time to enforce the writ. If the unlawful possessor fails to comply with the order, he or she may be held in civil contempt of court in addition to facing other penalties, such as conversion of the property unlawfully held.
The person on whom the writ is issued may file a motion to stay the writ of possession. There are four requirements for a valid emergency motion to stay the writ. Most importantly, there must be legitimate reasons stated showing that the person is actuality entitled to possession of the property. The motion must also request that the judge stop the sheriff from enforcing the writ and a further request that the judge grant a hearing so the party may respond to the charge of unlawful possession. Last, a copy of the motion must be served to the opposing party’s attorney. If the emergency motion is granted, then the party who filed the motion will be granted a chance to tell his or her side of the story in court.
