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What is an Unlawful Detainer?

Updated September 25th 2022

5 min read

Seeking one out can help reclaim your property

What is an Unlawful Detainer?

What is an Unlawful Detainer?

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Trey Salm

Author


Dispute is the easiest & most accurate small claims platform with affordable ways to resolve every dispute.

Eviction is a legal procedure where a property owner can terminate a tenant's right to remain on the rented property. This procedure can result in the renter having to leave the property or pay for money owed. The formal eviction procedure requires a court order.

That order is called an "Unlawful Detainer."

This article will help explain what to expect when seeking an Unlawful Detainer to evict a tenant.

What Is an Unlawful Detainer?

An unlawful detainer is a legal process for a property owner to evict their tenant. It requires a particular court procedure to be filed at the appropriate local courthouse.

The reason courts describe the eviction as "forcible entry and detainer" or "unlawful detainer" is that the landlord is alleging the tenant has unlawfully continued to use and possess the rental property. The landlord is seeking the court's help to remove the tenant in response.

Unlawful detainer cases can be utilized if one of the following happens:

  • The renter does not leave after the lease ends
  • Rent is not paid according to the lease
  • The renter violates the terms of the lease
  • The landlord cancels the lease
  • Squatting

Unlawful Retainer Requirements

In general, the landlord cannot forcibly evict a tenant without proper notice. They are required to provide written notice to the tenant. If the tenant does not settle the dispute within the stated amount of time, the landlord may file an unlawful retainer to begin the eviction process.

In general, a landlord does not have the right to evict a tenant without a court order, if the landlord is completely confident of the case.

How to file an Unlawful Detainer

The unlawful detainer forms and required court processes can be complicated and vary from state to state. Typically the process to file and complete an Unlawful Detainer lawsuit follows these steps:

  1. Determine where (which courthouse) you want to file the unlawful detainer case
  2. Head to the courthouse and obtain the appropriate documents.
  3. Read and understand the documents. Fill them out, and have them notarized.
  4. Head back to the courthouse (2nd time!) and file them.
  5. Pay the filing fees.
  6. Wait for the courthouse to process your documents. They will contact you when it's either accepted or rejected.
  7. If the unlawful detainer filing is successful, you will be asked to serve the defendant the summons.
  8. Serve your defendant. Get the affidavit of service from the person who served the defendant.
  9. Head to court (3rd time!) and file the affidavit that shows service was attempted and what occurred.
  10. Head to the courthouse (the 4th time!), attend your hearing, present your argument and hear the court's judgment on the case.

Or, you can hire Dispute to help you with the Unlawful Retainer process. Most of our users only have to travel to the courthouse once, and that's for their hearing.

What to expect at the Hearing

In most courts, the landlord is asked to file the required paperwork to begin the unlawful detainer, and once filed, a hearing can be set. The courthouse picks the date and time and will likely host the hearing in person.

Many courthouses require both parties to attend the hearing. If one party does not attend, the other can win by default. Both parties can present their cases, and the court rules on the unlawful detainer.

It's possible to have a monetary judgment made in your favor for the amount of money owed. You may be owed rent, legal fees, and costs. Landlords can also seek a writ of possession of the premises.

It's important to note that in some states, the tenant is asked to file a written notice or answer before the hearing date is set. The landlord can win without a hearing if the answer is not filed with the court.

How to Regain Possession

The court provides a writ a few days after the judgment while giving the tenant a set amount of time to voluntarily move out of the property. After the writ is issued, local law enforcement can take the Writ and evict the tenant to enforce the ruling. It is illegal for the landlord to attempt to remove the tenant directly. The sheriff will perform a "lockout" on the landlord's behalf.

The tenant vacates the property, and the landlord once again regains possession.

Sheriff Lockout

If the court grants a writ of possession, the tenant may face a "sheriff lockout." This is when the sheriff is utilized to vacate a tenant legally from a property. Each county's sheriff's office has its practice regarding the timing provided to the tenant after the writ of possession is issued.

For example, in California, the sheriff posts the Writ of Possession on the property the day it is issued and provides the tenant five days to vacate the premise. The sheriff's office contacts the landlord and lets them know when they are scheduled to perform the lockout.

Regardless of the specific timing, when the sheriff does arrive to lock out the tenant, they will likely be given 10-20 minutes to gather their possessions and leave the premise.

If you have any questions about how to seek an unlawful container, please contact us.

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