An unlawful detainer is a dispute between a landlord and a tenant where the tenant will not willingly leave the premises. As a result, the landlord is required to go to court and file an unlawful detainer lawsuit.
In the context of real estate law, an unlawful detainer lawsuit is a legal action by a landlord in order to evict a tenant who is in possession of real property without having the legal right to do so. Unlawful detainer is considered to be a speedy action that determines whether the tenant is required to vacate the premises.
In other words, an unlawful detainer action is a proceeding that provides legal relief for issues, including:
- Declaring a breach of the lease agreement;
- Declaring who has legal possession of the property;
- Issues related to past due rent up to the date of judgment; and
- Whether the lease includes provisions for court costs and attorneys fees.
In general, an unlawful detainer lawsuit will receive priority over most other types of lawsuits. Unlawful detainer complaints are rapidly scheduled for trial, typically within 14 days of filing and service.
What Is the Unlawful Detainer Process?
The process for filing an unlawful detainer claim will vary greatly by jurisdictions and may also depend on local laws. Generally, unlawful detainer lawsuits proceed as follows:
- Notice: Prior to filing an unlawful detainer claim, a landlord is required to serve the tenant with a termination notice. The most common termination notice is a 3 day notice to pay or vacate or a 30 day notice of termination of tenancy rights;
- The complaint: The owner of the property must then prepare as well as file a complaint with the court. Additionally, a copy of the complaint is required to be served on the tenant;
- In the compliant document, the owner must state the facts that support their claim that the tenant is staying on the property illegally;
- Once the complaint has been served on the tenant, they have a limited number of days to respond to the complaint by filing and serving their response;
- This timeframe is usually five days;
- Some jurisdictions require that the owner verify their complaint;
- A filing fee is required to be paid to the court for the owner to file and process the complaint;
- Default: If the tenant does not answer the complaint properly or within the required time period, a default judgment may be entered against them;
- In order for a default judgment to be entered against the tenant, the owner is required to apply for one. In other words, it is not automatically granted; and
- Answer: If the tenant files and serves their answer to the complaint within the required time period, the allegations are then contested and a trial date will be set by the court;
- The tenant is required to pay a filing fee to the court to file the answer.
- If the tenant is not able to pay the filing fee because they cannot afford it, they may request a fee waiver.
What Are Some Other Items and Steps to Consider in the Beginning of the Unlawful Detainer Process?
It is important to be aware that if a landlord selects the wrong type of notice or makes a mistake when filling out the notice, they may be required to serve a new termination notice. In addition, proof of service of the termination notice must be properly obtained.
After serving the notice, the landlord is required to wait and see whether the tenant complies with the terms of the notice. There are, however, certain circumstances under which a landlord may not be required to serve a termination notice.
This may include end-of-lease and non-renewals. The majority of residential tenancies last a specific period of time, referred to as a tenancy for a term.
Under these types of arrangements, the least will terminate at the end of the specified term. If, however, the lease becomes a month-to-month tenancy, proper notice must be provided to terminate the lease.
For non-renewals, the requirements vary by location. There are some cities that maintain statutes or ordinances that require a landlord or tenant to provide notice of their intent not to renew their lease.
Can an Unlawful Detainer Judgment Be Appealed?
Yes, an unlawful detainer judgment may be appealed by either party. Although the exact time frames will vary by location, an individual typically has 5 to 10 days to file an unlawful detainer appeal after a judgment is issued.
In addition, as a general rule, an appeal bond or cash bond must also be posted with the court within the 5 to 10 day time limit. If the party who is appealing the judgment is unable to pay the costs of the appeal or file a bond, the party is still entitled to appeal by filing an affidavit that states that they are unable to pay the costs or file the bond.
If I Appeal an Eviction Can I Stay on the Premises?
Whether or not an individual can stay on the premises if they appeal an eviction depends on the jurisdiction. Certain jurisdictions allow a tenant to stay in possession of the premises when they file an appeal.
Other jurisdictions allow the tenant to stay in possession only if the eviction proceedings were for the nonpayment of rent and the tenant is appealing using an affidavit that shows the tenant’s inability to pay costs or file a bond. The tenant is required to pay the court rent up front each month that rent is due during the appeal process.
On the other hand, some jurisdictions do not permit the tenant to stay in possession of the premises when an appeal has been filed. In certain jurisdictions, a stay of execution may be filed with the court, which will give the tenant more time to move out because of hardship.
It is common for rent to be paid to the court up front for any extra time that is granted as a result of the stay of execution.
How Do I Appeal an Unlawful Detainer Judgment?
As noted above, an individual typically has 5 to 10 days to appeal an unlawful detainer judgment. An individual may file a motion to quash unlawful detainer, stating that the landlord did not serve the summons and complaint properly.
If the tenant’s motion is granted, the landlord will be required to re-serve the summons and complaint. If the landlord prevails, the tenant will be required to file an answer to unlawful detainer right away.
The answer allows the tenant to tell the court if there are any legal reasons their landlord cannot evict the individuals. It also allows them to present their side of the story to the court.
Do I Need a Lawyer to Appeal an Unlawful Detainer Judgment?
Landlord-tenant laws are very complex, may vary by location, and are always undergoing changes. If you have any issues, questions, or concerns related to unlawful detainer judgments, it is important to consult with a landlord-tenant lawyer.
Your lawyer can help you understand the unlawful detainer laws in your area. A landlord-tenant lawyer will also represent you in court and protect your rights, whether you are a landlord or a tenant.