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, unlawful detainer means that one of your tenants has conducted himself or herself in such a manner so as to be in violation of your lease or rental agreement.

Unlawful detainer also refers to the type of lawsuit you can file against that tenant in order 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 have 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

Most of the time you can get rid of a recalcitrant or unruly tenant by simply giving him or her a written notice of termination of his or her lease or rental agreement. This notice must state the date by which (s)he must move out of the unit (s)he currently occupies. Again, state laws vary as to how much time you must give your tenant to move out. Having a landlord/tenant attorney can be of real help here.

Needless to say, no tenant likes receiving a notice of termination, even if (s)he recognizes that (s)he’s given you good cause to evict her. Prepare for a show of anger on his or her part. Try to keep the conversation as short and civil as possible. Do not say anything that might escalate the situation. If (s)he threatens you, however, call the police immediately and report it. If necessary, request that they come to the premises. Under no circumstances are you ever required to put yourself in danger in order to begin or conclude eviction proceedings.

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

You will also need to file at least two copies as well as the original of your petition. The Clerk of the Court or other appropriate official will stamp all three with your filing date and file the original with the court. (S)he likely will return the two file-stamped copies to you. However, (s)he may retain one of them to pass on to your county sheriff to serve on your tenant. In any event, you will get a file-stamped copy for your own records.

Most jurisdictions require you and your tenant to come to a court hearing where you present evidence of why you have the right to evict him or her and (s)he presents evidence to the contrary. In other words, (s)he gets the opportunity to defend against your unlawful detainer suit. Ultimately the judge decides whether or not you can evict your tenant. If so, they issue a writ of eviction that specifically states how long your tenant has to move out. If your tenant fails to show up at the hearing, you will win 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 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 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. Although, 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.