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What Is an Unlawful Detainer Lawsuit?

An unlawful detainer lawsuit is a legal action filed by a landlord to evict a tenant who is in possession of real property without a legal right.  An unlawful detainer action is a proceeding limited in providing relief to: declaring a breach of the lease agreement, declaring who has legal possession of the property, past due rent up to the date of judgment, and if the lease provides for court costs and attorneys fees.  Unlawful detainer actions have priority over most other lawsuits and are scheduled for trial rapidly (usually within 14 days of filing and service).

The Unlawful Detainer Process

The unlawful detainer process varies from city to city.  Generally, the procedure of an unlawful detainer lawsuit is as follows: 

  • Notice – Before a landlord can file an unlawful detainer lawsuit, the landlord must fill out and serve the tenant with a termination notice.  Different types of termination notices must be served in different situations.  The most common notices to terminate are the 3 day notice to pay or quit or a 30 day notice of termination of tenancy.  Choosing the wrong type of notice or making a mistake in filling out the notice may result in the landlord having to give a new termination notice.  The proof of service of the termination notice must also be proper.  After serving the notice, the landlord must wait to see if the tenant complies with the notice.
  • Exceptions To The Notice Requirement – The following circumstances generally do not require the landlord to serve a termination notice on the tenant:
    • When the lease ends:  Most residential tenancies are for a specific period of time called a tenancy for a term.  The lease ends at the end of the term.  However, either by statute or because the lease contains an automatic renewal provision, the lease usually becomes a month to month tenancy.  In such cases, proper notice must be given to terminate the lease. 
    • Some cities have statutes that require the landlord or the tenant to give notice of the intention not to renew the lease. 
    • The tenant moves out:  A notice of belief of abandonment may be required
    • By agreement:  The landlord and tenant can always make an agreement to end the lease at any time
  • The Complaint – The owner of the property must prepare and file a complaint with the court.  A copy of the complaint must be served on the tenant.  In the compliant, the owner states facts that support the position that the tenant is staying on the property illegally.  After the complaint has been served on the tenant, the tenant has only has a limited number of days to respond (usually 5 days) to the complaint by filing and serving an answer.  Some jurisdictions require the complaint to be verified by the owner.  When a complaint is verified, the person filing the complaint swears under the penalty of perjury that the complaint is true.  A filing fee must be paid to the court to file the complaint.
  • Default – If the tenant does not answer the complaint within the time period, a default judgment may be entered against him.  For a default judgment to be entered against the tenant, the owner must apply for a default.  A tenant may file an answer after the time period only when a default judgment has not been applied for. 
  • The Answer – If the tenant files and serves an answer to the complaint in the time period, the tenant contests the allegations and a trial date will be set.  A filing fee must be paid to the court to file the answer.  If the tenant cannot afford to pay the filing fee, he may apply for a fee waiver.

Unnamed Tenants

If a person living at the premises is not named in the unlawful detainer lawsuit, that person will also not be named in the writ of execution if the landlord wins the lawsuit.  A sheriff enforcing a writ of execution cannot lawfully evict an occupant whose name does not appear on the writ of execution and who claims to have lived in the premises before the unlawful detainer lawsuit was filed, unless a prejudgment claim of right to possession was served with the complaint.  If the landlord serves a prejudgment claim of right to possession with the complaint, then all persons living at the premises generally have 10 days, depending on jurisdiction, to file the prejudgment claim of right to possession with the court.  By filing the prejudgment claim of right to possession, the unnamed tenant joins the lawsuit as a defendant.  By failing to file the prejudgment claim of right to possession with the court in the time prescribed, the unnamed tenant is prohibited from joining the lawsuit and can be evicted by a sheriff enforcing a writ of execution.

Tenant’s Affirmative Defenses in the Answer

The most common affirmative defenses to an unlawful detainer action are the implied warranty of habitability, retaliation, and discrimination.  Other common affirmative defenses to an unlawful detainer action include: 

  • Repair and deduct – The tenant made needed repairs after giving reasonable notice to the landlord to make the repairs, and the landlord did not give proper credit to the tenant.
  • Tenant offered rent during the termination notice period and the landlord would not accept it.
  • The landlord waived, cancelled, or changed the termination notice.  For example, the landlord accepted rent for a period of time after the termination notice expired.
  • The landlords demand for possession violates a local rent control ordinance.

Memo to Set Trial

The landlord must file a memo to set trial after the tenant has filed and served an answer to set a trail date.  The trial date is scheduled very quickly after the memo to set trial has been filed, usually within 10 to 20 days. 

Counter Memo to Set Trial

A tenant who cannot make the trial date set must file a counter memo to set trial.  The counter memo to set trial is also the last chance the tenant has to request a jury trial.  The tenant generally has 5 days after the memo to set trial to file and serve the counter memo to set trial.

Settlement Conference

If a jury trial is demanded, some jurisdictions require there to be a mandatory settlement conference.  Both the owner and the tenant are required to attend the settlement conference and the court hopes to resolve the issue without a trial.  If the issue cannot be resolved, then the action will proceed to trial. 

The Trial

At the trial, each side will present there side of the story.  Take any evidence which will help to prove your case to the judge or the jury, such as copies of your lease, rent payment receipts, witnesses, or any other documentation or information that helps to prove your case.  After all of the evidence has been presented, the judge or the jury will make a ruling.  Unlawful detainer trials generally take about 2 hours.

The Judgment

After the trial, the judge will issue a judgment either for the landlord or for the tenant.  The judgment will state who won the case. 

The Writ of Execution

Once judgment becomes final a writ of execution can be issued.  The writ is then delivered to the sheriff for execution.  An execution fee must be paid to the sheriff before the execution process beings.  After the sheriff receives the execution fee, the sheriff will post a 5 day notice which states that the sheriff will be back in 5 days to remove the tenants and their possessions from the property if they have not already vacated the premises.  If the tenants still are in possession of the premises when the sheriff returns, they are removed from the premises and instructed not to come back.

Stay of Execution

A petition for a stay of execution may give a tenant additional time to vacate the premises after losing an unlawful detainer action.  Stays are granted only upon a showing of extreme hardship.  The stay also cannot cause a hardship on the landlord.  If the stay is granted, the tenant must pay the court in advance reasonable rental value as rent becomes due.  Many jurisdictions limit a stay of execution to a period not longer than 30 days.

Do I Need a Real Estate Lawyer for an Owner Move in Eviction

Landlord tenant law is very complex, varies by city, and is constantly undergoing changes.  A real estate lawyer will be able to advise you of the exact rules your city has regarding the unlawful detainer process and can protect your rights, whether you are an owner trying to utilize the unlawful detainer process or a tenant fighting an unlawful detainer action.

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 10-12-2017 12:44 AM PDT

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