Unlawful Detainer

You’re a residential landlord, and the tenant isn’t paying the rent.  So, you post a 3-day notice, and when the tenant still doesn’t pay, you know it’s time to file an unlawful detainer action.  What are your options?

  1. Do it yourself.  Although some landlords can fill out the initial paperwork (Summons and Complaint) correctly, most become quickly overwhelmed if the tenant files an answer and raises affirmative defenses to the complaint.  Not recommended.
  2. Hire an unlawful detainer processing service.  They tend to move slowly, and have limited legal resources to effectuate the process.  If the landlord posted an improper 3 day notice (because it contained late fees, etc.), few of these processing services will bother to review it before filing the complaint.  The complaint is then dismissed, and the process (at the landlord’s expense) starts all over again.
  3. Hire an attorney.  Each and every day a tenant occupies your property without paying the rent, you are losing money.  The cost to hire an attorney is usually less than the cost of having a non-paying tenant prevent you from getting a paying tenant in there.  There are times to save money, but an unlawful detainer action is the time to do it right the first time.

If the landlord does everything right, the residential unlawful detainer process usually works like this:

Day 1: The rent is due, the tenant doesn’t pay.

Day 4: The landlord posts a 3 day notice; tenant still doesn’t pay.

Day 8-10: Depending on whether the notice period included a weekend, the notice period expires.  At this point, the landlord has no obligation to accept any rent from the tenant.  If the landlord’s intent is to get the tenant out, no funds should be accepted.

Day 11: An unlawful detainer action is filed.  The Complaint must include a Summons, a copy of the 3 day notice, and a copy of the written lease (if there is one still in effect).

Day 12+ The tenant must be personally served with the Summons and Complaint by someone who is not a party to the action.  Once served, the tenant has 5 days to Answer the complaint (most tenants do not).

 

If the tenant did NOT file an Answer:

Day 18+ The landlord files a default and gets a judgment (usually for possession only) and provides it to the sheriff for a “kick out” order.  The order is then served on the tenant, who then has five days to vacate.

Day 24+ The tenant either leaves peacefully, or is forcefully evicted by the sheriff.  The landlord gets possession.  Change the locks!

Day 25+ The landlord calculates all damages (lost rent, damage to property, less tenant’s security deposit) and requests a money judgment from the Court.

If the tenant DID file an Answer:

Day 18+ The landlord files a request to have the matter set for trial, providing dates of unavailability.

Day 28+ The tenant files a counter request, with any dates he/she/they are unavailable.

Day 45+ The Court sets the matter for trial (usually by the judge, although either party may request a jury).

As you can see from the above timeline, the unlawful detainer process can be simple or complex, depending on the tenant(s) actions.  Although commercial evictions have slightly more simplified procedures, they too can be daunting.  If a tenant files bankruptcy, an automatic stay goes into effect, requiring the landlord to seek relief from the stay in federal bankruptcy court.   Considering the possibilities, it’s best to seek the immediate advice of counsel on unlawful detainer matters.

In residential actions, our firm only represents the landlord.  We do represent small business commercial tenants.  If you have a question or concern about a tenancy that may lead to an unlawful detainer, please contact our office for a consultation at no cost to you.