Unlawful Detainer: Your Ultimate Recourse When You Need to Evict a Noncompliant Tenant

By definition, unlawful detainer, sometimes called forcible entry and detainer, means the act of retaining possession of real property by someone who has no legal right to do so. As a landlord, an unlawful detainer means that one of your tenants has conducted himself or herself in such a manner to violate your lease or rental agreement.

Unlawful detainer also refers to the type of lawsuit you can file against that tenant to legally evict him or her. Unlawful detainer laws vary from state to state. Considering this, your best interests dictate that you hire an experienced landlord/tenant attorney to help you in this endeavor.

Examples of Unlawful Detainer Causes of Action

You cannot legally evict a tenant simply because you don’t like him or her. You also cannot evict someone because you wish you had never rented to him or her in the first place. There must be a valid eviction reason, such as one of the following:

• Your tenant is behind on his or her rent or habitually pays it late.
• (S)he has breached one or more of the lease or rental agreement provisions.
• Destruction of some part of your premises, whether inside his or her unit or in your property’s common area.
• (S)he is engaged in illegal activities on your property, such as illegal drug usage.
• (S)he has acquired a roommate or a pet without your permission.
• Activities disrupt other tenants.
• (S)he refuses to leave even though his or her lease or rental period has ended.

Notice of Termination

Usually, you can remove a difficult tenant by giving them a written notice to end their lease or rental agreement. This notice should clearly state the date they must vacate the unit. Keep in mind that state laws vary on how much notice you need to provide, so consulting a landlord-tenant attorney can be very helpful.

No tenant enjoys receiving an eviction notice, even when they know their actions justify it. Expect some anger in response and aim to keep the conversation brief and civil. Avoid saying anything that might escalate the situation. If the tenant becomes threatening, call the police immediately and report it. Remember, you’re not required to put yourself at risk to carry out an eviction.

The Unlawful Detainer Process

If your tenant refuses to leave even after receiving notice of termination, you will need to file an unlawful detainer lawsuit against him or her. The first step in this process is for you to file a petition of unlawful detainer in the appropriate division of your county court. Your state laws may call this document something else. To emphasize, a local attorney experienced in landlord/tenant disputes can draft the necessary petition, giving it the proper name and making sure it includes all the necessary legal language.

When you or your attorney file your unlawful detainer process, you will be required to pay a filing fee. This will likely be somewhere between $25 and $100, depending upon the filing fee structure your court imposes.

You’ll need to file at least two copies, along with the original, of your eviction petition. The Clerk of the Court or designated official will stamp each with the filing date, keeping the original on record. They’ll likely return a stamped copy to you for your records and may forward another to the county sheriff for service on your tenant.

In most areas, both you and your tenant are required to attend a court hearing. You’ll present evidence supporting your right to evict, while your tenant has a chance to provide a defense. The judge will then decide if eviction is warranted and, if so, issue a writ of eviction that states how long the tenant has to vacate. If your tenant doesn’t show up for the hearing, you’ll win the case by default.

Reclaiming Possession of Your Property

Never attempt to physically remove a tenant from your property yourself, even if you possess a legal writ of eviction. A local law enforcement official, usually your county sheriff, has the authority to enforce eviction writs. If needed, he or she can forcibly evict your tenant if (s)he refuses to leave of his or her own accord.

Wait until you know for certain that the tenant is gone before you enter the unit (s)he occupied. It’s always a good idea to have a locksmith with you so you can get the locks changed as quickly as possible.

Prepare to find a considerably less than spotless place. Tenants, even happy ones, are not known for the outstanding condition in which they leave the apartments they’re moving out of. Unlawful detainer tenants have even less incentive to clean the place up when forced to move against their will. If the unit is in seriously filthy or otherwise poor condition, you may well have the right to withhold a refund of some or all of the security deposit. Check with your attorney as to when you can do this and how much of the deposit you can keep.

Work With an Experienced Local Lawyer

The eviction and unlawful detainer processes are pretty straightforward. However, your best strategy consists of hiring a knowledgeable landlord/tenant attorney to make sure you do everything correctly and in the correct order.

Submit a request online or call us today at (866) 345-6784 to get in touch with an experienced unlawful detainer attorney in your area.

About the Author

Aaron is a professional legal writer with a B.S. in English Education from Southern Illinois University – Carbondale. He has written, published, and edited thousands of legal articles for RequestLegalHelp, which has connected over 5 million people to legal help in the United States.

With over five years of experience writing thousands of legal articles for law firms across the U.S. and Canada, Aaron specializes in covering federal, state, and city-level legal issues ranging from auto accidents to wrongful terminations. Contact Aaron at [email protected] for article suggestions, collaborations, or inquiries.