Unlawful Detainers FAQ
Our firm often receives questions related to eviction actions, also known as unlawful detainers.
Here are some of the most common:
1) My tenant is not paying, can I toss their stuff on the curb and change the locks?
Landlords are not allowed to engage in “self-help” techniques. Self help is any method of evicting someone from the premises without going through the proper legal channels. Even if the person does not have a formal lease agreement in place, you may not simply kick them out or change the locks. If you do, you risk being sued and assessed with monetary damages. The only permissible ways to evict someone from your property are through a joint agreement with them to leave or a judgment from a court telling them they must go.
2) What if someone is just a squatter/trespasser?
Whether someone is a tenant with a formal written lease, an invited guest who has overstayed their welcome, or a trespasser/squatter, there is a risk that they will claim to have rights to reside at the premises as a tenant and thus be entitled to tenant protection laws. A good rule of thumb is that if the person has been there for more than a few days past when they were asked to go, you run the risk of them making a tenancy claim. If a guest or squatter will not leave when asked, you should immediately call police and tell them someone is trespassing on your property.
3) How does the eviction process work?
You must serve a Notice on the tenant (3-60 days depending on why you are evicting them and how long they have lived there – this notice period can be longer if special local rules apply). This Notice is often served by posting on the tenant’s door.
If the tenant does not comply with that notice, the next step is to file an unlawful detainer action with the court. This is a complaint asking the judge to decide the issue of possession – you claim the current occupants do not have a right to possess (aka be at/reside at) the property and you would like the judge to issue an order finding this to be true.
Once the complaint is filed, the court clerk will stamp it and send it back with a summons, which must be given to the tenant. While posting the Notice is fairly easy (the process server often simply nails it to the door) you must personally serve a tenant. Sometimes they hide from the process server, which can delay the process.
Once served, the tenant has 5 days (not counting weekends or holidays) to answer the complaint. They answer it by filing an Answer with the court and serving you with a copy. If they do not, you may request a default judgment from the court (aka: you win the case by default because the tenant did not answer). If they do answer, then you ask the judge to set a trial. The judge is supposed to set trial within 30 days, but the courts have been backlogged and so sometimes the date given is longer than 30 days away.
At trial, you will present your evidence of why the tenant should no longer get to be at the property. Maybe their lease expired, or they breached it by failing to pay rent or damaging the property. Maybe they were never supposed to be there in the first place. Whatever your argument for why they should leave, you present it at this time. Bring all of your evidence and witnesses to the trial. The tenant gets to present their counter evidence, and the judge makes a decision.
If you win the case, the judge will give you a judgment of eviction. You give that to the Sheriff via a process called a Writ, and the Sheriff will then schedule and conduct a lockout of the tenant. This can be a delay point as well, as sometimes the Sheriff’s office will give you a lockout date several months away. Not until the Sheriff’s lockout is the eviction complete.
Once the tenant leaves, you must process their security deposit (if any) and send notices regarding any abandoned property they left behind, so there are often some extra tasks to handle, even post-lock out.
4) How long will this take?
There are many times when the case may be delayed (see above), and these cases can take as long as 12 months or longer to conclude.
5) What about special tenant protection rules in my area?
Some cities and counties have put in place special rules to provide tenants with additional rights and protections. If your city or county has such rules, then you will need to follow them. These can include a ban on no-fault evictions, relocation assistance, additional notice time, etc.
6) Can I shorten the process?
The best resolution for a landlord is to enter into a Voluntary Termination of Occupancy Agreement with the tenant. These agreements are often called “cash for keys” agreements. Note that some city/county ordinances have special rules for these agreements, so it is important to follow all local ordinances to ensure your agreement is valid. Any such agreement should be in writing and should address such issues as when
the tenant will leave, their security deposit, abandoned property, waiver of any claims against you the tenant may have, etc. You can try to negotiate this agreement while proceeding with the formal eviction process.
7) Will the tenant pay my costs and fees?
The American Rule presumes that each party to a lawsuit will pay its own attorneys’ fees, even if they win the lawsuit. There are ways to shift this presumption. The most common is having a written agreement that provides for the prevailing party in any legal dispute to recover their fees. If you have this type of provision in your written lease agreement with your tenant, then if you win the eviction case, you can request that the judge award your attorneys’ fees. Unlike attorneys’ fees, costs (like filing fees and service of process fees) are typically awarded to the winner in all eviction cases.
However, tenants are often difficult to collect from – they typically do not own real estate that can be liened, and if they are having trouble paying rent they are not likely to have the means to pay a monetary judgment.
8) What if the tenant says they own the property?
An unlawful detainer judge only has jurisdiction to decide issues of possession (in other words, who has a right to be at/live at the property). If the tenant claims they actually have ownership rights in the property, then a quiet title action (in other words, asking the judge to hush all the arguments about who owns the property and declare who has ownership rights and what they are) may be required. Typically, though, a tenant cannot bring up this claim as a defense in an unlawful detainer action to stall the case. They will typically be required to actually take the steps to file a separate quiet title action in general civil court to pause the eviction on this basis.
9) I’m renting space and my roommate won’t leave. Can I file against a co-tenant?
Only the owner of the real property can file an unlawful detainer action.
10) Do I have to have an attorney to help me?
You do not have to. You may proceed in pro per (on your own) without an attorney for the entirety of the unlawful detainer process. However, these cases are strictly ruled on by the judge, with the presumption of finding in favor of the tenant. If a single box is checked wrong in a Notice, for example, the entire case may be thrown out and you can be ordered to start the process over again. So, it is advisable to hire a knowledgeable attorney to assist you with the process.
11) What is a no-fault eviction?
Sometimes the tenant does something wrong that warrants eviction. This is an eviction for fault. Examples are staying past the end of the lease, not paying rent, or breaching the lease agreement (illegal sublets, damage to the property, etc.)
Sometimes, though, a landlord just wants the tenant out. You may not evict someone for a discriminatory reason (based on their ethnicity, religion, etc.). But if you wish to take the property off the rental market, you want to move in, you want to sell it, you want to do some renovations, or some other reason not related to the tenant or their actions, this is a no-fault eviction. There are sometimes restrictions on no-fault evictions in certain counties and cities.
12) How much notice do I need to give the tenant?
This depends on your local ordinances, the terms of the lease (if any), how long the tenant has lived at the property, and the type of eviction (no fault or otherwise). Typically the notice periods are 3, 30, or 60 days.
If the tenant is doing something wrong, you must give them a chance to cure, or fix, the wrongdoing. This is when a 3-Day Notice to Cure or Quit is warranted. For example, you can tell them they have three days to pay rent or quit (leave). Or three days to remove a pet or leave. If the tenant does not fix the problem or leave, then you would file the unlawful detainer action.
Sometimes you can serve a client with simply a 3-day notice to leave. This is reserved for only serious infractions that cannot be fixed, such as when the tenant is actively damaging the property, selling drugs, committing crimes, etc