Unlawful Detainer Action
An unlawful detainer is an action taken by the landlord against a tenant who refuses to leave the premises after an official eviction notice. It is a last resort effort to remove a tenant who is in violation of their lease agreement.
Tenants can avoid an unlawful detainer by paying rent on time and following the terms of their lease. Each state is different, so knowing the state and local laws concerning rental property is essential. A legal violation may also be grounds for an eviction and unlawful detainer proceedings.
After the landlord files the paperwork, a court hearing takes place. When the court finds for the landlord, a sheriff or sheriff’s deputy can escort the tenant from the property. An unlawful detainer is a serious matter concerning rental property. Both tenants and landlords should uphold the terms of their rental agreement.
Filing an unlawful detainer suit
Before a landlord can file an unlawful detainer, he or she must issue an eviction notice in accordance with local laws. Tenants have a reasonable amount of time to fix the problem. If this does not happen, you may then file an unlawful detainer suit with the court.
Steps for Landlords to follow
If you do not follow proper procedure, the tenant may be able to have the case dismissed on a technicality. A dismissal resets the eviction process, which means your rental property will not be generating income for a longer period.
You must submit an unlawful detainer in the jurisdiction where the property is located and pay a small filing fee.
Follow these steps to file an unlawful detainer suit
- Serve the tenant with an eviction notice. The time frame for the tenant to resolve issues varies by jurisdiction.
- File an unlawful detainer suit with the court if the tenant does not leave or catch up on rent payments.
- Attend the hearing the court schedules. In some areas, the tenant has a few days to file an answer to the suit. In this case, the court schedules a hearing after it hears from the tenant or the time frame for a response is passed.
- Never physically force the tenant to leave. This action is the responsibility of the sheriff’s department.
An unlawful detainer is the last resort for forcing the tenant to leave the property. Sending a late rent notice and an eviction notice first ensures the landlord is taking the proper steps. Save all related documents such as rental agreements, receipts, late rent notices, and eviction notices. These documents will serve as evidence for the court hearing.
You cannot file an unlawful detainer cannot be filed against individuals who are not in the lease agreement. Instead, file a prejudgment claim of Right to Possession must be filed for anyone not listed on the lease.
Unlawful detainer forms are available online, or at the courthouse. Property owners can file an unlawful detainer without an attorney; however, you may want to obtain legal advice and recommendations before filing.
If the renter leaves the premises before the court date after an unlawful detainer has been served, the case is dropped entirely. However, the owner can still file charges against the renter for any unpaid rent, damages, or legal fees. The landlord also automatically wins if the tenant fails to respond or appear in court. In these cases, the court issues a writ of possession. A sheriff or deputy serves the writ and forcibly evicts the tenant.
Defending an unlawful detainer action
As a renter, there are laws you need to follow when renting a home or apartment. Having a lease agreement is essential. It also helps to know and understand your rights as a renter. If you receive an eviction notice, do not simply ignore it. If for any reason you cannot leave the property in the allotted time the landlord gives you, make arrangements with them to avoid an unlawful detainer.
Reasons for an unlawful detainer action
In some jurisdictions, the law requires your landlord to have a legitimate reason for evicting you. These reasons may include but are not limited to
- Expiration of your lease without signing a new one
- Keeping unauthorized pets
- Allowing guests to stay on the property longer than your lease allows
- Illegal activity on the property
- Damage to the rental property
- Nuisance issues, such as excessive trash or noise
Note that not all jurisdictions require a reason for eviction. In these areas, your landlord must still provide an eviction notice, but they can evict you for any reason.
You have a few different options if your landlord files an unlawful detainer action against you. First, you can simply move out and ignore the suit. However, your landlord still has the right to request a judgment against court costs plus the amount you still owe.
Second, you can talk to your landlord. If you can work out the issue, you may be able to settle the matter out of court. You may still have to move within a short period or pay past due rent.
Finally, you can choose to defend your case. If you choose this option, make sure you are familiar with the legal requirements surrounding the process. Some jurisdictions give you a chance to file an answer and serve it to your landlord. If you do not do this within a few days, the landlord automatically wins the case. You must also appear at the hearing set by the court. Bring evidence that can support your position such as
- Proof that you asked the landlord for repairs, but had to pay for them yourself
- Evidence the landlord is evicting you in retaliation for reporting them for housing code violations
- Proof that you offered payment, but your landlord rejected it
- Evidence that your landlord allowed you to continue paying rent after serving an eviction notice
If you believe you have enough evidence to defend your position, you may want to talk to an attorney. He or she can help you determine whether your evidence meets the burden of proof necessary to defend your case.
Most unlawful detainer cases result in the issuance of a writ of possession. This means a sheriff or deputy will come to the rental property and force you to leave unless you move out within 2-3 days after the hearing. However, you may appeal the decision at the hearing. The court may grant a stay of enforcement under extreme hardship if you cannot leave immediately or afford to pay rent. This does not prevent your eviction but may give you up to 30 days to move. You must also pay the court rent in advance for this period.
An unlawful detainer can be costly and stressful for everyone involved. Always have a lease agreement when renting a property. Pay rent on time to avoid this situation. If you are in extreme hardship, ask for help. There are resources for rental help for people with low income or emergency situations. Try to communicate with the landlord. If this action is unpreventable, be respectful of the owner and the judge when attending court.
Taking precautions for both parties
During the unlawful detainer process, it may be necessary for one party to serve the other with papers. It is not a good idea to handle this yourself. Instead, have a neutral third party deliver the paperwork. When they do, have them create a proof of service document by writing down the time, date, and steps they took to serve the papers. This provides evidence in court that you followed proper procedure.
Whether you are the landlord or tenant, it is wise to have a lease agreement signed and notarized for legal purposes. Keep all receipts and document issues that arise. Maintain a good relationship between you and the other party. Communication is the key to success when it comes to a rental dispute. If both parties fulfill their obligations in the rental contract, you may be able to avoid unlawful detainer action.