Unlawful Detainer

Unlawful detainer is a civil law term used in regard to a situation in which a tenant in possession of a leased or rented property refuses to vacate the premises after the lease has ended. In order for the landlord to evict the tenant, he must file an unlawful detainer action with the civil court in the jurisdiction in which the property is located. To explore this concept, consider the unlawful detainer definition.

Definition of Unlawful Detainer

Noun

1. A special court proceeding for the purpose of evicting a tenant from a residential or commercial property.

What is an Unlawful Detainer

Historically, landlords had the authority to enter their properties, and remove a tenant who was in violation of the lease by force. Modern laws in the U.S. do not allow landlords to do this, but require them to apply to the court for an eviction order. This legal process is called an unlawful detainer action, and it satisfies the tenant’s rights to due process. In an unlawful detainer action, the landlord may ask for, in addition to an order for eviction, compensation for damages to the property, and unpaid rent.

While an unlawful detainer action refers to a court proceeding itself, the term also refers to the act of unjustifiably keeping possession of real property by someone who originally obtained possession in a lawful manner. In simple terms, unlawful detainer is the refusal to leave after a lease has been terminated, or the tenant has been asked to leave in an otherwise legal manner.

For example:

A month before John’s lease expires, his landlord gives him the option to enter a new lease, or to vacate the premises. John drags his feet, expressing his unwillingness to sign a new lease for a higher rent amount. When the lease expires, John still has not signed the lease provided by the landlord, and has told him that he has not found another place to live. The landlord can only get John out of his property by following property eviction proceedings, which entails filing an unlawful detainer action in court.

Eviction

Eviction is the legal process by which a property owner can force a tenant to leave his property. Simply giving a tenant 30-days notice to vacate a rented property is not enough, should that tenant refuse to go. Obtaining a legal eviction order requires the owner of the property to prove to the court that he has good cause to want the tenant out. There are many reasons a landlord may request and obtain an order of eviction. Many of these reasons entail the tenant violating conditions of the lease, such as:

• Failure to pay rent in the amount agreed, and on time
• Keeping unauthorized pets in the premises
• Allowing people not authorized by the lease to live or stay on the premises
• Engaging in illegal activities at the premises

Filing an Unlawful Detainer Action

While the steps to filing an unlawful detainer action vary by jurisdiction, the basics are the same in most states. To initiate the eviction process, the property owner must provide the tenant a termination notice, which is usually a 3-day notice to pay or quit, or a 30-day notice to vacate the premises. Should the tenant remain in the premises after this notice has expired, the landlord must file an unlawful detainer complaint in the civil court where the property is located.

Once the document has been filed with the court, it must be personally served on the tenant. The tenant is required to file a written answer to the complaint with the court. If he fails to do so, the landlord is awarded a judgement for eviction by default. If the tenant does file an answer in the time limit provided, a hearing is scheduled which must be attended by both parties.

If the judge rules in favor of the landlord, a writ is issued giving the tenant an opportunity to move out on a voluntary basis. This is usually a short period of time, which may vary from 24 hours to 5 days. If the tenant still refuses to leave, law enforcement officials can physically remove him from the premises.

Tenant’s Belongings upon Forced Eviction

In the event an order for eviction is issued by the court, the tenant has only those few days granted to move out to dispose of his property. If the sheriff physically removes a tenant from a property, the personal property left in the residence is, in many jurisdictions, moved to a bonded storage facility. If the tenant wants his belongings back, he must pay the storage fees.

Unlawful Detainer Forms

Most courthouses provide unlawful detainer forms a landlord can use in order to file an eviction. These are available online in most jurisdictions. Unlawful detainer forms require specific information, including the names and addresses of both parties, the type of lease or rental contract involved, and what the landlord is requesting from the court, including payment of rent and damages. Because it is not uncommon for landlords to file unlawful detainer actions without an attorney, most courts provide instructions with their complaint forms to assist both landlords and tenants in completing the paperwork properly.

Sample Unlawful Detainer Form

While each state has its own complaints for filing an unlawful detainer action, California’s Judicial Council Form No. UD-100 may serve as an example. An experienced attorney can assist landlords in filling out unlawful detainer forms, or can defend a tenant against eviction.

Related Legal Terms and Issues

• Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
• Damages – A monetary award in compensation for a financial loss, loss of or damage to personal or real property, or an injury.
• Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
• Hearing – A proceeding before the court at which an issue of fact or law is heard, evidence presented, and a decision made.
• Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
• Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
• Real Property – Land and property attached or fixed directly to the land, including buildings and structures.