An unlawful detainer refers to a dispute between a tenant and their landlord, in which the tenant will not leave the premises willingly. As such, the landlord must go to court and file an unlawful detainer lawsuit. In real estate law, an unlawful detainer lawsuit is a legal action filed by a landlord in order to evict a tenant possessing real property without the legal rights to possess it. It is considered to be a speedy action which will determine whether the tenant is required to vacate the premises.
To put it simply, an unlawful detainer action is a proceeding which provides legal relief for issues such as:
- 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 provides for court costs and attorneys fees.
Generally speaking, unlawful detainer lawsuits receive priority over most other lawsuits. An unlawful detainer complaint would be rapidly scheduled for trial, usually within fourteen days of filing and service.
The process to file an unlawful detainer varies greatly from city to city, and could also depend on local jurisdictional laws. In general, an unlawful detainer lawsuit would proceed as follows:
- Notice: Prior to filing an unlawful detainer lawsuit, the landlord must serve the tenant with a termination notice. The most common termination notices are a three day notice to pay or quit; or, a thirty 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 must be served on the tenant. In the compliant document, the owner must state which facts that support their claim that the tenant is staying on the property illegally. Once this complaint has been served on the tenant, the tenant has 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 the owner to verify the complaint; and, a filing fee must be paid to the court for them to file and process the complaint;
- Default: If the tenant does not properly answer the complaint, and within the time period, a default judgment may be entered against them. In order for a default judgment to be entered against the tenant, the owner must apply for a default. Meaning, it is not automatically granted; and
- Answer: If the tenant files and serves an answer to the complaint within the proper time period, the allegations will then be contested and a trial date will be set. A filing fee must be paid to the court for them to file the answer; if the tenant cannot afford to pay the filing fee, they may request for a fee waiver.
What Are a Tenant’s Affirmative Defenses?
There are some defenses that a tenant may have available to them in an unlawful detainer action. The most common affirmative defenses to an unlawful detainer action include:
- The implied warranty of habitability;
- Retaliation; and
- Discrimination.
Other examples of affirmative defenses could include:
- Repair and Deduct: This defense states that the tenant made needed repairs after giving reasonable notice to the landlord to make those repairs. However, the landlord did not properly credit the tenant for their work;
- Denial of Offer: The tenant offered to pay rent during the termination notice period, and the landlord simply would not accept the offer;
- Changed Circumstances: The landlord waived, cancelled, or changed the termination notice at some point; and
- Violation: The landlord’s demand for possession violates a local rent control ordinance, or other similar laws.
An unlawful detainer judgment may be appealed by either party. A party generally has five to ten days in which to file an appeal, once the judgment is issued. Additionally, an appeal bond or cash bond must also be posted with the court. This must be done within the same five to ten day time limit. If the appealing party is unable to pay the costs of the appeal, or to file a bond, that party is still entitled to appeal by filing an affidavit. This affidavit states that the party is unable to pay costs or file a bond.
Some jurisdictions will permit a tenant to stay in possession, once they have filed the appeal. Other jurisdictions will only allow a tenant to stay in possession if the eviction proceeding was for the nonpayment of rent. Additionally, it must be shown that the tenant is appealing by way of an affidavit, as previously mentioned. The tenant must pay rent to the court, upfront, each month rent is due during the appeal process.
Other jurisdictions do not permit the tenant to stay in possession of the premises simply because an appeal has been filed. A stay of execution may be filed with the court, which would provide the tenant with more time to relocate because of their hardship. Commonly, rent will be paid to the court upfront, for any extra time that is granted as a result of the stay of execution.
What Are Some Other Items and Steps to Consider in the Beginning of the Unlawful Detainer Process?
Something to note is that selecting the wrong type of notice, or making a mistake when filling out the notice, could result in the landlord needing to serve a new termination notice. Additionally, proof of service of the termination notice must be obtained properly. After serving the notice, the landlord is required to wait and see if the tenant complies with the notice terms.
However, the landlord may not be required to serve a termination notice under specific circumstances. Some examples of such circumstances could include end-of-lease and non-renewals.
Most residential tenancies are for a specific period of time. This is referred to as a tenancy for a term. Under such arrangements, the lease ends at the end of the specified term. However, if the lease becomes a month-to-month tenancy, proper notice must be given to terminate the lease.
In terms of non-renewals, it varies by location. Some cities maintain statutes or ordinances requiring the landlord or the tenant to give notice of their intention not to renew the lease.
Other important issues to consider may include:
Memo to Set Trial: The landlord must file a memo in order to set a trial with the court. This must take place after the tenant has both 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 ten to twenty days;
Counter Memo to Set Trial: A tenant who is unable to make the trial date set will need to file a counter memo to set trial. This is the last chance for the tenant to request a jury trial; and
Settlement Conference: If a jury trial has been requested, some jurisdictions require that there is a mandatory settlement conference. Both the owner and the tenant must attend the settlement conference. This conference is a sort of mediation which can sometimes resolve the issue without going to trial. If the issue cannot be resolved during the settlement conference, the action will then proceed to trial in court.
Do I Need a Landlord Tenant Lawyer for an Unlawful Detainer Claim?
If you are involved in an unlawful detainer claim, you should consult with a real estate lawyer in your area as soon as possible. Because landlord-tenant law is complex and varies by city, it is constantly changing.
An experienced and local landlord tenant lawyers will be best aware of such laws and how they may affect your case based on the specific circumstances surrounding your case. Additionally, an attorney can protect your legal rights, whether you are an owner or a tenant, and will also be able to represent you in court, as needed.
Jose Rivera, J.D.
Managing Editor
Editor
Last Updated: Apr 21, 2021
