In real estate law, an unlawful detainer lawsuit is a legal action filed by a landlord to evict a tenant who is in possession of real property without legal rights to possess it. Basically, an unlawful detainer action is a proceeding providing relief for issues like:

  • Declaring a breach of the lease agreement
  • Declaring who has legal possession of the property;
  • Issues like past due rent up to the date of judgment, and 
  • Whether the lease provides for court costs and attorneys fees. 

Unlawful detainer actions typically receive priority over most other lawsuits and are scheduled for trial rapidly (usually within 14 days of filing and service).

What is the Unlawful Detainer Process?

The unlawful detainer process varies from city to city and may depend on local jurisdictional laws. Generally, however, the procedure of an unlawful detainer lawsuit is as follows: 

  • Notice: Before a landlord can file an unlawful detainer lawsuit, the landlord must serve the tenant with a termination notice. Different types of termination notices must be served depending on the situation. The most common notices to terminate are a 3 day notice to pay or quit or, a 30 day notice of termination of tenancy rights
    • Selecting the wrong type of notice or making a mistake in filling out the notice may result in the landlord having to serve a new termination notice. Proof of service of the termination notice must also be properly obtained. After serving the notice, the landlord must wait to see if the tenant complies with the notice terms;
  • Exceptions To The Notice Requirement: The following circumstances usually do not require the landlord to serve a termination notice on the tenant:
    • End-of-lease: Most residential tenancies are for a specific period of time called a tenancy for a term. Under such arrangements, the lease ends at the end of the term. However, it can happen that the lease becomes a month-to-month tenancy. In such situations, proper notice must be given to terminate the lease. 
    • Non-renewals: Some cities have statutes or ordinances requiring that the landlord or the tenant to give notice of the intention not to renew the lease. 
  • The Complaint: The owner of the property must then prepare and file a complaint with the court. A copy of the complaint must also be served on the tenant. In the compliant, the owner must state facts that support the position that the tenant is staying on the property illegally. 

    • Once 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 their answer. Some jurisdictions require the owner to verify the complaint. A filing fee must be paid to the court to file and process the complaint.

  • Default: If the tenant does not properly 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 (that is, it is not automatically granted); 
  • The Answer: If the tenant files and serves an answer to the complaint within the proper time period, the tenant contests the allegations, and a trial date will be set. Also, 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/request for a fee waiver.

What if there are Unnamed Tenants Involved?

In cases where a person living at the premises is not named in the unlawful detainer lawsuit, that person will usually not be named in the writ of execution if the landlord wins the lawsuit. A sheriff enforcing the writ of execution will therefore not be able to lawfully evict an occupant whose name does not appear on the writ of execution.

On the other hand, if the landlord serves a prejudgment claim of right to possession with the complaint, then all persons living at the premises have 10 days to respond with a 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 in the case. 

If they don’t file the prejudgment claim of right to possession with the court in the time prescribed, the unnamed tenant is prohibited from joining the lawsuit. They can then be evicted by a sheriff enforcing a writ of execution.

What are a Tenant’s Affirmative Defenses?

A tenant may have defenses to an unlawful detainer action. The most common affirmative defenses to an unlawful detainer action include the implied warranty of habitability, retaliation, and discrimination

Other 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 repairs, and the landlord did not properly give credit to the tenant;
  • Tenant offered rent during the termination notice period and the landlord simply would not accept it;
  • The landlord waived, cancelled, or changed the termination notice at some point; and
  • The landlords demand for possession violates a local rent control ordinance or other similar laws.

What are Some Other Items and Steps to Consider in the Beginning of the Unlawful Detainer Process?

Other important issues and steps prior to an unlawful detainer lawsuit beginning may include:

  • Memo to Set Trial: The landlord must file a memo to set trial with the court. This must happen after the tenant has filed and served an answer to set a trial date. The trial date is scheduled quite 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 needs to file a counter memo to set trial. This is the last chance the tenant has to request a jury trial; 
  • Settlement Conference: If a jury trial has been requested, some jurisdictions require there to be a mandatory settlement conference. Both the owner and the tenant must attend the settlement conference, which can sometimes resolve the issue without a trial. If the issue cannot be resolved, then the action will then proceed to trial in court. 

What is the Next Step in the Unlawful Detainer Process?

After these important preliminary steps, trial can begin. Here is how the rest of the process looks:

  • The Trial: At the trial, each side will present their side of the story. They will also present any evidence which will help to prove their case to the judge or the jury. 

    • This includes evidence like copies of the lease, rent payment receipts, witnesses, or any other documentation or information that helps to prove their case. 
    • After all of the evidence has been presented and reviewed, the judge or the jury will make a final ruling. Unlawful detainer trials can be quick, as they generally take about 2 hours;
  • The Judgement: After the trial, the judge will issue a final judgment either for the landlord or the tenant. The judgment basically states who won the case;
  • The Writ of Execution: Once the judgment becomes final, a writ of execution can be issued. The writ is then delivered to the sheriff for execution, which allows them to take actions such as evicting tenants. 

    • An execution fee must first be paid to the sheriff before the execution process begins. If the tenants still are in possession of the premises when the sheriff returns, they will be removed from the premises and instructed not to come back.
  • Stay of Execution: A petition for a stay of execution may be requested. This will 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 to the tenant. The stay also cannot cause a hardship on the landlord, either. If the stay is in fact 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 lasting no longer than 30 days.

Thus, the process for an unlawful detainer can involve many, many different steps and deadlines. In some cases, it may be possible to appeal an unlawful detainer judgment

Do I Need a Real Estate Lawyer for an Unlawful Detainer Claim?

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