WHAT IS AN UNLAWFUL DETAINER

An unlawful detainer is a legal way for a landlord to evict a tenant. It requires a special court process and can move quickly through the court system. Unlawful detainer cases are often used if one of the following occurs:

  • The tenant does not leave after the lease ends
  • Rent is not paid
  • The lease is canceled by the landlord.

The first step is for the landlord to file a complaint or petition with the local court and pay a small filing fee. The renter must be served with the court documents. In some jurisdictions, tenants are entitled to a jury trial if they ask for one. In jury trials, the jury determines whether the tenant should be evicted.

Notice Requirement and Court Filing

A landlord cannot forcibly evict a tenant without proper notice. The landlord must provide written notice to the tenant of the default. If the tenant does not fix the default within a reasonable amount of time, the landlord must file for a formal court eviction proceeding. This will start the eviction process.

Courts commonly refer to eviction actions as “forcible entry and detainer” or “unlawful detainer” actions. The legal theory is that the landlord alleges the tenant unlawfully continues to have use and possession of the rental property, and the landlord seeks the assistance of the court to have the tenant removed.

Court Hearing

In most jurisdictions, once the landlord has filed the required paperwork, a court hearing on the unlawful detainer will be set. In some jurisdictions, the tenant is required to file a written notice or answer. In those jurisdictions, if the answer is not filed, the landlord will win without a hearing ever being set.

In jurisdictions that do require a hearing, if the tenant does not attend the scheduled court hearing, the landlord will prevail. If the tenant does attend, the court will determine whether the tenant should be evicted and will take into account any defenses the tenant may have. The landlord may be given a monetary judgment for the amount of money owed for rent, attorney fees and costs, and maybe granted a writ for possession of the premises.

How Does a Landlord Regain Possession?

A writ will typically issue a few days after the judgment, allowing the tenant the opportunity to move out of the rental unit voluntarily. Once the writ is issued, it may be executed by local law enforcement officials. This means the landlord is not allowed to exercise self-help by attempting to remove the renter directly.

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