Something no renter wants to receive is an unlawful detainer. An unlawful detainer is a lawsuit to evict a tenant and they vary greatly from state to state.
Whether you’re a landlord, property manager, or tenant, dealing with unlawful detainers is less than ideal. Continue reading below to learn more about unlawful detainers, what to do if you receive one, and how you can avoid them.
What is an unlawful detainer?
An unlawful detainer is a lawsuit that a landlord files to evict a tenant. Landlords can serve an unlawful detainer on a tenant when they are still living in a property that they no longer have a right to live in.
Some reasons a tenant may receive a notice of unlawful detainer are:
- Continuing to live at the property after the end of the lease (called “holding over”)
- Renting with a pet when pets aren’t allowed
- Failing to pay rent in full or on time
- Failing to pay other fees in full or on time
- Damaging the property
- Endangering or disturbing other tenants
- Participating in illegal activities in your apartment
- Otherwise, violating your lease agreement
Steps in an unlawful detainer action
There are usually some steps a landlord has to take before filing a lawsuit against a tenant. These rules vary, depending on where you live. Typically, the landlord will first give the tenant a notice of the tenant’s violation, often called a Notice to Quit. If the tenant does not fix the violation, then the landlord can file and serve an unlawful detainer lawsuit against the tenant.
If you are served with an unlawful detainer lawsuit, you typically only have a few days to respond. Not all states have the same turn around period to respond, so check with your state’s notice period. If you don’t respond, the court can default you, which means your landlord automatically wins the case and can evict you. If you do respond to the unlawful detainer, some courts will schedule a settlement conference before setting a trial date, while others will immediately set a date for trial.
During a settlement conference, the parties can try to resolve the issue, but if you and your landlord can’t reach a settlement, you will proceed to trial. The court will then decide whether your landlord has grounds to move to evict you.
State & local laws about notice of unlawful detainer
When it comes to unlawful detainers, there are certain rules that landlords and their property managers have to follow, in order to legally evict a tenant. For instance, in one city, a landlord may have to deliver a notice to quit in person, while another city may require the property manager to send it via certified mail.
Cities with rent control, like Portland, OR and San Francisco, CA, often have different laws regarding unlawful detainers. Whether you live in a city with rent control or not, make sure to read up on your local and state laws to help avoid an unlawful detainer action.
Unlawful detainer vs. eviction
It’s easy to confuse a Notice to quit and an eviction notice because they are related to each other. Here’s a little more on the differences between the two.
An unlawful detainer action is a lawsuit that your landlord files when you breach your lease agreement and they believe you are no longer entitled to live at the property. Eviction is the process of physically removing you from the property. If you lose at the unlawful detainer trial, you will be evicted. But if you win the lawsuit, you won’t be evicted. So, an unlawful detainer will always come before an eviction, but also doesn’t necessarily mean you’ll be evicted.
The other important difference between an unlawful detainer and eviction is who performs the action. Landlords or property managers file unlawful detainer suits with the court, while the sheriff is the only person who can evict someone from their apartment.
What happens when you get an unlawful detainer?
The most important thing to remember when you get served with an unlawful detainer is that you need to officially respond to it, usually within a very short amount of time. Otherwise, the court may automatically order that you be evicted. You can file a response yourself, at the courthouse or have a lawyer file one for you. Typically, the documentation that accompanies an unlawful detainer will include instructions on how to file your response.
If you respond to the unlawful detainer in time, the court will usually set a trial date within approximately twenty days. But, every state and city has different rules about the timeline.
Here’s what you can expect when you get an unlawful detainer:
Notice of violation is sent
Before you are served with an unlawful detainer, you’ll get a notice of your violation, commonly known as a notice to quit. This means that you have a limited amount of time to pay rent owed to your landlord, stop doing a prohibited activity in your apartment, or otherwise comply with the terms of your lease.
Each state has different rules about these notices. Some states give you three days to comply, while others give you 30, 60, or even 90 days. Often times, the notice period depends on the type of violation alleged. A notice to quit is basically a warning before your property manager files an unlawful detainer to pursue eviction.
If you don’t follow your notice to quit, your property manager can file an unlawful detainer. Once you receive a unlawful detainer lawsuit, you have a certain number of days to respond. Make sure to read the notice carefully so that you respond in time.
Exceptions to the notice requirement
Generally, every state requires your landlord to give you notice before they can file a complaint against you. But, there are some exceptions to this rule.
For example, if your lease was on a fixed term (i.e., it had a set end date), and you didn’t renew your lease, your landlord is not required to give you notice before filing an unlawful detainer.
The bottom line here is that you’ll usually receive a different notice before you are served with an unlawful detainer, to give you a chance to work it out with your landlord without going to court. Make sure to read up on your local laws or hire an attorney to check that your landlord followed all rules before filing an unlawful detainer.
Your landlord files a court complaint
If you didn’t follow your notice to quit, your landlord can file a court complaint (or unlawful detainer) against you. Your landlord must prove that you breached your lease in order to evict you.
The moment you receive the unlawful detainer lawsuit, the clock starts ticking for you to file a response.
Defaulting an unlawful detainer
Default judgment on an unlawful detainer means that you didn’t file a response to the unlawful detainer lawsuit within the specified timeframe. Unfortunately, this means that the court can automatically rule in your landlord or property manager’s favor, meaning they can then legally evict you.
Answering an unlawful detainer
To answer an unlawful detainer, you need to file an official response to the court. You can do this with the help of a clerk at the court or with the help of an attorney.
Once you answer your unlawful detainer, typically the court will set a date for your settlement conference and/or trial date. If you reach a settlement at the settlement conference, you won’t go to trial, but if you don’t reach an agreement, you will have to go to trial.
If you win, you don’t have to leave your residence. You may also not have to pay some of the charges your property manager wants from you. You can negotiate for these things in a settlement conference too.
Alternatively, your landlord may win the case. That means they have the right to evict you. You can either move out immediately or request additional time, sometimes known as a Stay of Eviction, which means you can stay in your building for a set number of days that you pay for before you move out. A few days before you move out, you’ll receive a document from the Sheriff directing you to leave the premises.
Your options when you receive an unlawful detainer
Even if you receive a notice of unlawful detainer, you have options.
Sometimes, the easiest thing to do is to move out. This forces your landlord to dismiss the complaint. In other words, you won’t have to go to court, and you won’t be evicted. This could be beneficial since renting with an eviction on your record comes with its own hurdles.
The one downside to moving out immediately is that you’re still responsible for any debts owed to your landlord. So if you’re behind on rent by two months, you’ll still have to pay that rent to keep it from showing up on your rental history record or else your landlord can sue for the money owed. However, this is only a lawsuit to recover money and not an unlawful detainer.
Respond on time
If you respond on time, you have the option to reach a settlement with your landlord or go to trail and plead your case.
You may also be able to reduce the amount of money you owe to your landlord through a settlement.
Lastly, you can choose not to respond to the unlawful detainer but a court may issue a default judgment against you. That means a court automatically finds you guilty of the claims alleged in the lawsuit, and will order you to pay any fees or debts owed to your landlord. Plus, the eviction will show up on your record.
How you can avoid an unlawful detainer
To avoid an unlawful detainer, make sure to:
- Read your lease thoroughly, especially before you move in
- Follow all rules laid out in your lease, including quiet hours and pet rules
- Take good care of your apartment
- Respect your neighbors
- Move out at or before the end of your lease
- Pay your rent in full on time every month
- Pay any other fees in full on time every month
Frequently asked questions about unlawful detainers
Can a tenant win an unlawful detainer?
Yes, a tenant can definitely win an unlawful detainer lawsuit. For instance, if your landlord hasn’t followed all of their state or city’s guidelines for filing an unlawful detainer, you may be able to win your case. Here are some of the things landlords are not allowed to do in order to remove a tenant:
- Retaliate against you
- Discriminate against you
- Practice “self-help” eviction tactics to get you to move out, like turning off your utilities, locking you out of your apartment, etc.
- Give you less notice to move out than is legally required
- Raise rent without proper notice
How long does an unlawful detainer take?
Unlawful detainer trials last about one day on average. From the time you receive your unlawful detainer until the end of a court date (if you have one), the whole process will likely take about a month or less, depending on where you live.
How do you respond to an unlawful detainer?
To respond to a notice of unlawful detainer, you need to file an official response with the court. You can go to court and file your response with a clerk. Or, you can get legal help, and a lawyer will respond for you. There are other response options too, but these are the most common.
How long does an unlawful detainer stay on your record?
If you do not win the unlawful detainer action, it typically stays on your record for seven years but its important to know which records it will show up on. If you just received an unlawful detainer, and you weren’t evicted, the only place your unlawful detainer might show up is your rental history report. This is because an unlawful detainer is considered a civil matter and will show up on public records. But it won’t show up on your background check and if you have no outstanding debts in relation to the eviction, it won’t show up on your credit report either.
If you were evicted at the end of your unlawful detainer process, the eviction will show up on your rental history report. The eviction may also affect your credit report if your landlord sent any charges to collections.
What happens if you get an unlawful detainer eviction?
Let’s say you went to trial for your unlawful detainer, and you lost. Your landlord now has the right to evict you.
If you can’t leave the apartment immediately, you can request a Stay from the court. A Stay is a period of time you’re able to stay in your apartment before the sheriff comes to evict you. Usually, a Stay can last up to 40 days.
Once you negotiate a Stay, you will likely be required to prepay your landlord for those days. So, if you are staying for five days, you’ll pay your landlord for five days of rent upfront.
Five days before you have to leave, the sheriff will post what is sometimes called a Writ of Possession on your apartment. It’s a reminder that in five days, you need to vacate the property before the Sheriff comes and changes the locks. On the day you leave, the sheriff will escort you from the building if you have not yet vacated. Depending on the laws in your state, your landlord may be able to dispose of any remaining belongings, can sell your personal items, or can charge you for storing them for a period of time.
Redfin does not provide legal advice. This article is for informational purposes only, and is not a substitute for professional advice from a licensed attorney.