Eviction and Unlawful Detainer
Eviction is a legal process by which a landlord may terminate a tenant's right to remain on the rental property. Ultimately, the renter may be forcibly removed from the property by the sheriff or other law enforcement officials. However, doing so requires a formal court order.
A tenant can be evicted for many reasons, but typically evictions take place where the tenant is in violation of one or more provisions of the lease agreement. Valid reasons for eviction may include:
- Failure to pay rent on time
- Harboring pets or persons not authorized to reside at the premises under the lease
- Illegal or criminal activity on the property
What Is an Unlawful Detainer?
An unlawful detainer is a legal way for a landlord to evict a tenant. It requires a special court process and can move quickly through the court system. Unlawful detainer cases are often used if one of the following occurs:
- The tenant does not leave after the lease ends
- Rent is not paid
- The lease is canceled by the landlord.
The first step is for the landlord to file a complaint or petition with the local court and pay a small filing fee. The renter must be served with the court documents. In some jurisdictions, tenants are entitled to a jury trial if they ask for one. In jury trials, the jury determines whether the tenant should be evicted.
Notice Requirement and Court Filing
A landlord cannot forcibly evict a tenant without proper notice. The landlord must provide written notice to the tenant of the default. 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.
Courts commonly 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 have use and possession of the rental property, and the landlord seeks the assistance of the court to have the tenant removed.
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.
How Does a Landlord Regain Possession?
A writ will typically issue a few days after the judgment, allowing the tenant the opportunity to move out of the rental unit voluntarily. Once the writ is issued, it may be executed by local law enforcement officials. This means the landlord is not allowed to exercise self-help by attempting to remove the renter directly.
Learn More About Eviction and Unlawful Detainer from a Lawyer
If you're currently faced with an eviction issue in your state, you should be armed with the most recent laws and a good working knowledge of your legal options. A good place to start is to contact a local landlord-tenant attorney who can evaluate your situation and explain how the laws apply to you.