What Is an Unlawful Detainer?

Getting a Tenant Out of Your Rental

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One of the most dreaded situations for a landlord is dealing with a tenant who refuses to move out of the rental property after their lease has been terminated. There are legal steps you can take to get these tenants out. Learn what an unlawful detainer is and the process for getting a tenant out of your rental.

What Is an Unlawful Detainer?

An unlawful detainer refers to an individual who remains in possession of property when they have no legal right to it.

It is commonly seen when a tenant continues to live in a rental unit after their lease has expired or been terminated. These tenants are aware that they have no legal right to live there, but refuse to leave the rental property even after being served a Notice to Vacate.

Common Reasons a Landlord Will File an Unlawful Detainer

There are certain situations where a tenant is more likely to try to stay in a rental unit after their lease has been terminated. These include:

  1. Tenant Has Not Paid Rent
  2. Tenant Has Engaged in Illegal Dealings at the Rental Property
  3. Tenant Has Breached Another Substantial Lease Clause—such as having a pet or threatening or harassing other tenants at the property.

The Unlawful Detainer Process

Each state has specific rules you must follow to evict a tenant from your rental property. If you do not follow your state’s rules correctly, you may have to begin the eviction process from scratch.

The following are the general steps you must take in order to force out a tenant who refuses to leave your rental property.

Step 1: Tenant Remains in Possession of Rental Unit

A tenant has breached their lease agreement, and based on your state law, you have sent the tenant the appropriate notice to quit the behavior.

For example, you may have sent the tenant a Notice to Pay Rent or Quit. The tenant has not paid the rent they owe, and yet they are still living in your rental property.

Step 2: Landlord Files Complaint With Court

The tenant is still residing in your rental property, and you want them out. You must then go to the Court and file a formal Complaint for Unlawful Detainer to get the tenant out. You will have to fill out paperwork and may have to pay a small fee.

Step 3: Tenant Served With Unlawful Detainer

The tenant will be served notice of the unlawful detainer.

Step 4: Tenant Response

A tenant will typically have five days to respond to the unlawful detainer once they have received the notice. A tenant can typically respond in one of three ways:

  • Tenant Moves Out: This is the response a landlord is hoping for. The tenant realizes that the landlord means business and moves out before any further legal action is taken.
  • Tenant Contests Unlawful Detainer: The tenant may respond to the unlawful detainer by stating that they have just reason to reside in the property. For example, the tenant may have been withholding rent because the landlord has refused to fix a substantial health or safety violation at the property. However, not all states will allow a tenant to withhold rent for this reason. If a tenant contests the unlawful detainer, a copy of the tenant’s response will go to the landlord and to the court and a trail will usually be set within 30 days.
  • Tenant Does Not Respond: A tenant’s failure to respond to the Unlawful Detainer is typically an automatic ruling in the landlord’s favor. The landlord may have to appear in court to receive the Judgment or may be able to fill out paperwork to have the default judgment issued.

Step 5: Trial

Certain states require a court appearance after a landlord files an unlawful detainer. If the tenant does not show up to this trial, the judge will automatically rule in favor of the landlord. Otherwise, the judge will hear from both the landlord and tenant and issue a judgment based on the facts presented.

Step 6: Judgment Is Issued

The landlord must show that he or she had a legally binding lease agreement with the tenant, which the tenant has breached. The landlord must show that he or she has served the tenant the proper notices to vacate the property and that the tenant has refused to remedy the behavior or leave.

Based on these two factors, the landlord has the right to regain possession of the rental unit.

If the judge has issued a judgment in favor of the landlord, whether by trail or by default, a Writ of Execution will be issued for the landlord to regain possession of the rental property.

Step 7: Writ of Execution:

The landlord has been granted an eviction against the tenant. A Sheriff, or Marshall, will be responsible for executing this Writ. The landlord will usually have to pay a fee in order for the Sheriff or Marshall to serve the Writ to the tenant.

The Marshall will go to the rental property and post notice on the tenant’s door stating that the tenant must vacate the rental property within a certain number of days, usually two to five days, depending on state law. The Marshall will return to the rental property once this time window is up and if the tenant has not left the property, the Marshall will forcibly remove the tenant from the property. The landlord can change the locks then and there, regaining possession of the rental property.