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VACATE

To annul, set aside, or render void; to surrender possession or occupancy.

The term vacate has two common usages in the law. With respect to real property, to vacate the premises means to give up possession of the property and leave the area totally devoid of contents. To vacate a court order or judgment means to cancel it or render it null and void.

A person may vacate property voluntarily or involuntarily through the issuance of an eviction order by a court. Rental and lease agreements usually contain a provision concerning when and how the tenant is to vacate the premises at the end of the lease period. Many landlords require renters to make damage deposits, which are refunded after the tenant vacates the property if the landlord determines that no serious damage has been done and that the renter has not left behind PERSONAL PROPERTY that must be disposed of by the landlord. Otherwise, the landlord may keep all or a portion of the deposit.

The other common legal usage of vacate refers to the canceling or rescinding of court judgments and orders. State and federal rules of CIVIL PROCEDURE give courts the authority to modify prior judgments. A judgment is the definitive act in a lawsuit that puts an end to the litigation by specifically granting or denying the relief requested by the parties. Once a judgment granting relief has been entered, the plaintiff may legally collect the damages awarded by the court.

A motion to vacate a judgment must be based on a substantial issue. Rule 60(b) of the Federal Rules of Civil Procedure permits a federal court to relieve a party from an adverse judgment on various grounds including FRAUD, mistake, newly discovered evidence, and satisfaction of the judgment.

Another common ground for seeking a motion to vacate is the failure to provide the person against whom the judgment is entered with sufficient notice of the action. If, for example, the plaintiff claims that after making a GOOD FAITH effort, he cannot locate the defendant to serve notice of the pending action, the court may permit service by publication in a newspaper. On the day of the hearing, if the defendant does not appear, the court may enter a default judgment in favor of the plaintiff. However, if the defendant discovers the judgment has been filed, she can make a motion to vacate. The defendant might argue that the plaintiff could have easily served the papers personally and given the defendant the opportunity to appear in court and argue the merits of the case.

Courts are generally reluctant to grant a motion to vacate a judgment, especially on the ground of newly discovered evidence. A court will not grant a motion to vacate where the complaining litigant failed to exercise due diligence in securing the evidence in sufficient time to offer it in the original lawsuit. Some jurisdictions do not allow any judgments to be vacated due to newly discovered evidence.

CROSS-REFERENCES

Landlord and Tenant.