Unlawful Detainer

What is unlawful detainer?

Unlawful detainer is a type of legal action a landlord can take against a tenant who is occupying a rental property without a legal right to be there. Filing an unlawful detainer complaint starts the eviction process so the landlord can take back the rental property.

Landlords can only evict a tenant under certain legal conditions. While laws vary by state, landlords must generally prove the following in an unlawful detainer case:

• The tenant didn’t pay rent when it was due or otherwise violated the rental agreement.
• The tenant was properly served with a written notice to pay rent, remedy the broken rules, or move out (usually a three- or five-day notice period depending on state law).
• The tenant didn’t respond to the notice or fix the problem in time.

Besides unpaid rent, a landlord can also usually bring an unlawful detainer action for the following reasons:

• Damage or waste: The tenant has caused serious damage that lowers the property’s value.
• Overstaying the lease: The tenant is still on the property after the lease has ended and hasn't signed a new lease.
• Illegal activity: The tenant is using the property for unlawful purposes, like drug use or criminal activity.
• Breaking other lease rules: The tenant broke the lease in another way, for example by subleasing it or keeping unauthorized pets.

If the court rules in favor of the landlord, it will issue a writ of possession, which allows the landlord to legally take back the rental property. However, tenants can challenge the case in court, and the judge may find the tenant has the right to stay.

FAQs

What is an example of unlawful detainer?

Unpaid rent is the most common example that leads to unlawful detainer. If the tenant ignores a notice to pay rent, the landlord can file an unlawful detainer complaint. This starts the process to evict a tenant and take back possession of the property.

What is the burden of proof for unlawful detainer?

The landlord must prove the tenant no longer has the legal right to stay on the property. This includes showing that notice was properly given and that the tenant didn’t comply.

Can a landlord cancel an unlawful detainer?

Yes, a landlord can cancel an unlawful detainer action if they choose to stop the eviction process before the court enters a judgment. This can happen if the tenant pays the rent owed, moves out voluntarily, or both parties reach an agreement.

How can I defend against an unlawful detainer action?

When a landlord files an unlawful detainer, you’ll be served with an eviction notice that has a court date for a hearing. At your hearing, you can argue that the landlord didn’t follow legal procedures, such as not giving proper notice. You can also show you had a valid reason for staying, like the landlord violating the lease first.