Unlawful Detainers

*****Disclaimer: This is not legal advice and is for educational purposes only. This does not create an attorney-client privilege.

An unlawful detainer is a means for a landlord to evict a tenant. An eviction, generally speaking, means a landlord has legally ended a tenants right to remain on a rental property. If you are a compliant tenant who meets the terms of your lease and pays rent on time, generally you leave a property when you come to the end of your lease.

If for whatever reason a landlord wants to evict, a UD is an option available to them. Before they serve the tenant with an unlawful detainer and proceed with a lawsuit, they would first give a notice to terminate the tenancy. There would be no reason for them to proceed with potentially costly and lengthy legal proceedings if the matter resolves at that point and the tenant left willingly.

A landlord cannot forcibly evict a tenant without the proper notice mentioned above. The landlord must provide written notice to the tenant of the default in the terms of their lease. If the tenant does not fix the default within a reasonable amount of time, the landlord must file for a formal court eviction proceeding. This will start the eviction process.

The courts often refer to eviction actions as "forcible entry and detainer" or "unlawful detainer" actions. The legal theory is that the landlord alleges the tenant unlawfully continues to possess/use the rental property, and the landlord seeks the assistance of the court to have the tenant removed.

In a UD lawsuit, the landlord is the plaintiff and the tenant is the defendant. The matter will be set for trial where the court will decide if the landlord may oust the tenant and regain possession of the property. In most jurisdictions, once the landlord has filed the required paperwork, a court hearing on the unlawful detainer will be set. In some jurisdictions, the tenant is required to file a written notice or answer. In those jurisdictions, if the answer is not filed, the landlord will win without a hearing ever being set.

In jurisdictions that do require a hearing, if the tenant does not attend the scheduled court hearing, the landlord will prevail. If the tenant does attend, the court will determine whether the tenant should be evicted and will take into account any defenses the tenant may have. The landlord may be given a monetary judgment for the amount of money owed for rent, attorney fees and costs, and maybe granted a writ for possession of the premises.

With a court order, the tenant would have to comply or they would be engaging in a crime and could be forcibly removed by law enforcement/be locked out. The property of the tenant at that residence can then be placed in storage and they will be responsible for the cost to store it.

Furthermore, an unlawful detainer can negatively affect a tenant’s ability to rent in the future, if they lose at trial. If the landlord has an uncollected money judgment for back rent against you, it may show up on their credit report. Evictions are also on public record for seven years.

For all these reasons, being served with an unlawful detainer is a very serious matter. Tenants who have been served an unlawful detainer should immediately consult with an attorney. And landlords seeking to remove a tenant who refuses to, this can be a powerful tool, especially when backed by the right attorney.

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