What You Should Know About an Unlawful Detainer


What You Should Know About an Unlawful Detainer

Teresa Bergen · Feb 17, 2022
Unlawful detainer papers, key and gavel in the court.

An “unlawful detainer” is legal speak for an action many tenants dread: eviction. This legal process determines the right to possession of property — in this case, your apartment. To bring forth this legal proceeding, the landlord must generally demonstrate that they complied with all procedural requirements, such as giving the tenant three days’ notice to pay up or get out.

How Did We Get Here?

The relationship between renter and landlord is two-way, and subsequently requires a great deal of trust. The renter expects a relatively safe and maintained property, with working appliances and whatever else the landlord promised when the tenant moved in. The landlord gambles that the chosen renters will pay rent on time, not trash the place, and act like at least semi-civilized citizens.

Of course, either party can breach this trust. The renter may be unable or unwilling to make rent payments and refuse to leave. Or tenants may violate other lease agreements by doing things like selling drugs, practicing loud instruments at all hours, or breeding animals in the basement.

Landlords aren’t always angels, either. We’ve heard of some who pursue unethical evictions to clear out faithful long-term tenants or to avoid making necessary repairs. Some landlords decide they’d make more money running short-term vacation properties, whether or not their buildings are legally intended for this purpose. In this case, unscrupulous property owners may jack up rent prices or unfairly enact eviction proceedings.

Plan A: Vacate the Premises

Once you’ve been served with an unlawful detainer, your next step is to decide whether to accept it or fight it. It’s soul-searching time. Have you been a lousy tenant? Do you owe months of unpaid rent? Does an inch of sour, spilt beer cover your living room floor? Have you used the windowsills as ashtrays? If so, it’s best to cut your losses and vamoose.

The good news is that it’s extremely easy to escape the unlawful detainer you’ve been served. All you have to do is move out of your apartment, and the case will be dismissed by the presiding judge. Since the unlawful detainer action is solely about the occupancy of the apartment, you eliminate the need to hear the case by moving out. Your landlord may still press charges for unpaid rent or damages to the apartment, but the unlawful detainer case itself will be over.

Maybe you’re not such a bad tenant, but the landlord clearly has a screw loose. If you have enough money to move, it might be time to find a better place with a better landlord. After all, moving is a temporary hassle, but a nutty landlord can harass you for months or even years on end.

Plan B: Fight

Then again, maybe you really like your apartment and feel that you’ve been unfairly served. Maybe the housing situation is extremely tight, or you’re too broke to come up with first and last for a new place. In this case, you might want to fight the unlawful detainer.

Filing Your Answer

Man reads his unlawful detainer notice and contemplates his answer.

Since unlawful detainers are a last resort intended to get you out of your apartment immediately, the proceedings move fast. Once your landlord provides you with notice of an unlawful detainer, you have five days to file a legal document called an Answer. Start counting these days with the first day after you were served. If the last day of the five is a court holiday or weekend, you must file on the next day the court is open.

Your Answer is your chance to respond to the landlord’s charges against you. Avoid drama, profanity, and abundant emotion. You might say the landlord failed to maintain the property, thus breaching the implied warranty of habitability, for example. Maybe the landlord filed the unlawful detainer because you complained about the leaking roof and busted heater and they didn’t want to fix it.

You can file your Answer electronically, but you must also send a copy to your landlord’s attorney. If your landlord doesn’t have a lawyer, send it to directly to him or her. Since laws, filing times, and procedures may vary by state, please check with your local court to verify your area laws.

Appearing in Court

Once all the paperwork is filed, you’ll be on the fast track for a trial, which will probably happen within 20 days. You’ll receive a summons with a date and time on it for both the landlord and the tenant to appear in court. This first court visit is called the “first appearance.” If you’re challenging the eviction, you must attend the first appearance. If a tenant doesn’t attend the first appearance, the judge will likely make a final ruling in favor of the landlord, and the tenant will be evicted from the rental unit.

At the first appearance, the judge may order the landlord and the tenant to attend mediation to try to resolve the situation. If the landlord and the tenant cannot come to an agreement during mediation, then a trial will be ordered. If the judge does not order the two parties to attend mediation, then the tenant can request a trial at the first appearance. The trial is your chance to publicly argue against your eviction.

Before the trial, you must file an answer with the court. Your answer will detail any defenses you wish to make to challenge the eviction. Just be sure to only include things you can prove, since you’ll have to back up your defenses at the trial.The judge will listen to both the tenant and the landlord and then make a final decision regarding the eviction. If you win, you get to stay in your apartment. If you lose, it’s time to move. Either way, you’ll still have to pay any back rent you owe.

Other Matters

Unlawful detainer proceedings don’t cover arguments about security deposits or rental losses (the rent you failed to pay to your landlord while still living in the apartment), nor do they allow you, the defendant, to file a cross-complaint against your landlord. If you have problems with your landlord’s actions, you’ll need to file a separate suit to address those issues.

Settling the Situation

Book of Landlord/Tenant Laws

If you don’t file a response to the unlawful detainer within five days, you’ll be subject to eviction. Your landlord cannot evict you, but a local sheriff can and will. It’s very important to take an unlawful detainer seriously by filing a response. If possible, talk to your landlord and settle the situation out of court. Just like a bad credit report, having an unlawful detainer judgment against you will not endear you to future landlords. Avoiding court will also save you time, legal fees, headaches, and heartaches.

If the situation with your landlord has become so tense that you can’t deal with one another directly, you may want to schedule a legal mediation. If you’re able to reach a settlement, get it in writing, making sure everyone signs and keeps a copy. In addition, your landlord needs to notify the court as soon as possible that an agreement has been reached and the case no longer needs to be heard.

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