Eviction and Unlawful Detainer
Key Takeaways
Eviction and unlawful detainer actions are formal court processes that landlords must use to legally remove a tenant from a rental property. A landlord must give proper written notice and then file an unlawful detainer lawsuit if the tenant doesn’t fix the problem or move out. Only after a judge issues a writ of possession can law enforcement forcibly remove the tenant and return the unit to the landlord.
Landlords can take legal action to force tenants out of the rental unit. If you get an eviction notice, treat it seriously. Your home is at stake. An eviction on your rental history can also impact your ability to secure housing in the future.
Eviction is the legal process through which a landlord terminates a tenant’s right to remain on the rental property. Ultimately, law enforcement may forcibly remove the tenant from the property.
This article explains the difference between evictions and unlawful detainers. It also describes the tenant removal process. There are general steps a landlord must take to evict, but the exact process and rules vary by state and even city. If you’re facing an eviction, consider consulting a local landlord-tenant attorney for personalized legal guidance.
Unlawful Detainer vs. Eviction: What’s the Difference?
These terms are sometimes used interchangeably, but they are not the same.
Unlawful detainer is the court case a landlord files to legally remove a tenant. Courts commonly refer to this action as “forcible entry and detainer” or “unlawful detainer” action. Doing so requires a formal court order. The landlord cannot use self-help to remove the tenant.
Eviction refers to the overall process of ending a tenant’s right to stay in the rental. An eviction starts with a written notice. If the tenant doesn’t resolve the issue (like paying past-due rent) or move out, the landlord must file an unlawful detainer to get a judge’s order. Only after the court issues a writ of possession can law enforcement physically remove the tenant from the property.
Lawful Reasons for an Eviction
Landlords can evict a tenant if they violate one or more lease agreement provisions.
Valid reasons for eviction include:
- Nonpayment of rent
- Illegal activity
Tenants have rights in evictions. A landlord cannot forcibly evict a tenant without proper notice. The landlord must provide the tenant with written notice of the default.
If the tenant does not fix the default, the landlord must file for a formal court eviction proceeding. This will start the eviction process.
Causes for Unlawful Detainer Actions
Unlawful detainer actions are often used if one of the following happens:
- The tenant does not vacate the rental unit after the lease ends.
- The tenant has unpaid rent.
- The landlord cancels the lease or rental agreement.
A landlord may also seek an unlawful detainer when a tenant’s guest has stayed on the property too long. To avoid this dispute, long-term guests may instead apply to join the lease as official roommates.
An unlawful detainer requires a special court process and can move quickly through the court system.
An unlawful eviction can tarnish your business reputation and expose you to legal risk and financial harm. A landlord-tenant attorney can help protect your interests and ensure you move through the process correctly. Find local legal help.
Unlawful Detainer Process
The steps in an unlawful detainer action are precise. If the landlord or property owner makes a mistake, they must start over.
Below is a step-by-step overview of how landlords seek an unlawful detainer:
- Serve the eviction notice. Most notices give the tenant a three-day or 30-day notice. This starts the eviction process.
- If the tenant does not vacate the premises during the notice period, then the landlord can pay a filing fee to file an unlawful detainer action (complaint).
- The tenant must file an answer to the complaint or risk default judgment.
- Both parties appear in court. If the judge favors the landlord, the court will issue a writ of possession. The court may also assess attorney fees against the tenant.
The landlord can give the writ to local law enforcement to forcibly remove the tenant from the rental property. Once law enforcement removes the tenant, the landlord regains possession of the property (rental unit).
Or, the tenant might successfully defend against eviction. If the judge favors the tenant, the landlord cannot force removal.
Get Legal Help With Eviction or Unlawful Detainers
If you are a landlord or tenant facing an eviction issue, speak with a qualified attorney. Landlord-tenant lawyers are uniquely experienced and stay up to date on state and local laws. They can offer you sound legal advice and help you protect your business or your housing.
FindLaw’s directory of landlord-tenant lawyers can get you started. Enter your city or ZIP code for a list of legal professionals in your area. Because state and local eviction laws are relevant, your attorney should be licensed in the state where the rental property is located. Your search results will also show important details about prospective attorneys, like ratings, areas of practice, and whether they offer free consultations.
Can I Solve This on My Own or Do I Need an Attorney?
- Both landlords and renters can benefit from a lawyer’s help during the eviction process
- Some tenant or neighbor disputes may need the help of local police
- Complex real estate issues (such as construction defects or illegal landlord actions) may need an attorney’s help
Buying or selling a home, facing foreclosure, or landlord-tenant issues can benefit from legal expertise. An attorney can offer tailored advice and help prevent common mistakes.
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