Eviction and Unlawful Detainer
Eviction is a legal process by which a landlord may terminate a tenant's right to remain on the rental property. Ultimately, the tenant may be forcibly removed from the property by the sheriff or other law enforcement official; however, doing so requires a formal court order. A tenant can be evicted for numerous reasons, but typically evictions take place where the tenant is in violation of one or more provisions of the lease agreement. Valid reasons for eviction may include:
- Failure to pay rent on time
- Harboring pets or persons not authorized to reside at the premises under the lease
- Illegal or criminal activity taking place within the rental premises
Notice Requirement and Court Filing
A landlord cannot forcibly evict a tenant without proper notice. The landlord must provide written notice to the tenant of the default. If the tenant does not fix the default within a reasonable amount of time, the landlord must file for a formal court eviction proceeding. Courts commonly refer to eviction actions as "forcible entry and detainer" or "unlawful detainer" actions. The legal theory is that the landlord alleges the tenant unlawfully continues to have use and possession of the rental property, and the landlord seeks the assistance of the court to have the tenant removed.
The Unlawful Detainer Process
The first step is for the landlord to file a complaint or petition with the local court and pay a small filing fee. The tenant must be served with the court documents. An unlawful detainer action is typically a proceeding which, unlike many civil trials, can move quickly through a court system; however, in some jurisdictions, tenants are entitled upon request to a jury trial in which the jury determines whether the tenant should be evicted.
In most jurisdictions, once the landlord has filed the required paperwork, a court hearing on the unlawful detainer will be set. In some jurisdictions, the tenant is required to file a written notice or answer. In those jurisdictions, if the answer is not filed, the landlord will prevail without a hearing ever being set. In jurisdictions that do require a hearing, if the tenant does not attend the scheduled court hearing, the landlord will prevail. If the tenant does attend, the court will determine whether the tenant should be evicted and will take into account any defenses the tenant may have. The landlord may be given a monetary judgment for the amount of money owed for rent, attorney fees and costs, and may be granted a writ for possession of the premises. A writ will typically issue a few days after the judgement, allowing the tenant the opportunity to move voluntarily. Once the writ is issued, it may be executed by local law enforcement officials (never the landlord directly) so that the tenant is removed from the rental property and then the landlord is given possession.