When a tenant defaults under a lease, the landlord may file a dispossessory proceeding seeking both possession of the premises (i.e. eviction) and collecting due but unpaid rent. Whether or not the landlord gets both (at least in that proceeding) may depend on how the process server delivers the landlord’s dispossessory affidavit and the court’s summons to the tenant. Handing them personally to the tenant or to someone legally empowered and authorized to accept service for the tenant provides the basis for the landlord to obtain both possession and rent. Determining who may properly accept service for a tenant can be dicey, and improper service may give the tenant defenses to the suit.
The process-server, if unable after reasonable effort to serve the papers either on the tenant or upon an authorized person, may attach a copy of the affidavit and the summons to the door of the leased premises and on the same day mail a copy of the papers to the tenant’s last known address. A tenant might challenge such “constructive” or “nail-and-mail” as insufficient under appropriate facts, such as the process-server’s failing to exert sufficient efforts to achieve personal service, posting at an address at which a corporate tenant does not reside or failing to mail the papers on the same day as posting. A successful challenge for insufficient service deprives the court of jurisdiction over the tenant. The tenant waives the defense if it fails to raise the defense not later than the filing of its answer. If the initial dispossessory affidavit is filed in magistrate court, the tenant fails timely to raise the defense and then appeals an adverse ruling to the state or superior court, that waiver carries forward and the defense is no longer available to the tenant in the otherwise de novo hearing on appeal.
Constructive service, even if properly effected does not, without more, entitle the landlord to an award of rent due. It is, however, sufficient for purposes of eviction.