What is an Unlawful Detainer?
An Unlawful Detainer, more commonly known as an eviction, is used when a landlord wants to get tenants out of a rental property - either commercial or residential. Only a sheriff can evict someone. Even if a tenant is months behind on rent, the landlord cannot evict the tenant or get rid of the tenant's belongings. The landlord must get a court order for the sheriff to evict a tenant.
What do I need to do to get the tenant out?
- Serve the tenant with a notice (see below for more information)
- Wait for the notice period to end
- File an Unlawful Detainer action if the tenant doesn't do what the noticed asked
What forms do I need to file with the court to get the tenant out if he/she does not comply with notice?
- Original Complaint (UD-100)
- Original Civil Case Cover Sheet (CM-010)
- Original Summons (SUM-130)
- Copy of the Notice (Demand Notice)
- Copy of the Rental Agreement (Optional)
What if I cannot afford the court fees and costs?
Both the Plaintiff and Defendant may submit a Waiver of Court Fees and Costs (FW-001) and an Order on Application for Waiver of Court Fees and Costs (FW-003). If there is more than one Plaintiff/Defendant, each Plaintiff/Defendant must file his/her own fee waiver application and order.
I served the tenant. How do I get a court date?
When the tenant files an answer, the landlord must ask for a court date using Request/Counter-Request to Set Case for Trial-Unlawful Detainer (UD-150). A copy must be mailed to each answering tenant before filing. The court date must be set within 20 days and notice will be mailed to all parties by the Court.
What forms do I need for a Default/Clerk's Judgment and possession?
- Original Proof of Service (POS-010)(separate one for each tenant)
- Request for Entry of Default (CIV-100)
- Judgment by Default by Clerk (UD-110)
- Writ of Possession (EJ-130)
Can a lock-out be delayed?
Yes, the tenant may file a motion for stay of execution. This allows the tenant to stay for up to 41 additional days as long as he/she can pay the rent for the extra time in advance.
Why did I receive a notice in the mail?
A Notice of Filing Unlawful Detainer Complaint (C.C.P. §1161.2) is required to be mailed, by the court, to each tenant named on the Complaint. For more information seek legal advice.
How long do I have to file an answer to Unlawful Detainer?
You have five (5) calendar days, excluding Judicial Holidays, from the date you were served to file an answer to an Unlawful Detainer action. If you do not file an answer within that time, the landlord may file for a default judgment.
What forms do I need to respond to the Summons and Complaint?
- Answer (UD-105)
- Proof of Service by Mail (UDL/E-8)
Before you file your answer with the court, you must first serve a copy to the plaintiff or plaintiff's attorney if represented. It can be served by mail or in person, but may not be served by a person who is a plaintiff or defendant in the case. The answer does not need to be received by the landlord prior to Defendant filing the answer with the Court.
I cannot be present for my court date. Can I send someone else in my place?
No. Only you or your attorney may represent you in court.
How can I change the court date?
Unlawful Detainer cases must be set no later then 20 days after the first request. You cannot request a change of court date over the phone. Please seek legal advice as to how to change your hearing.
Serving the Notice
Someone other than the landlord, who is over the age of 18, must serve the notice. There are three ways to serve the notice:
- Personal Service - the notice is given to the person (s) to be evicted in person.
- Substitute Service - If the tenant is not at their normal home or work, you can leave a copy with a person over the age of 18. You must then also mail a copy to their home.
- "Nail and Mail" - If you don't know where the tenant lives or works, or can't find someone over the age of 18 to give a copy to, you can
- attach a copy in a place where it can be seen easily, and
- give a copy to the person who lives there, if you can find one, and
- mail a copy to the defendant at the property.
If at the end of the notice period the tenant has not done what was asked (vacate the property or paid the rent) the landlord may file an unlawful detainer.
As an expert in property law and landlord-tenant disputes, I have extensive experience and knowledge in the legal processes surrounding rental properties, evictions, and the legal framework governing such matters. My expertise is demonstrated by a comprehensive understanding of the legal steps, documentation, and court procedures involved in cases such as unlawful detainers, also known as evictions.
The concept of an unlawful detainer or eviction is fundamental to landlord-tenant law. It refers to the legal action taken by a landlord to remove a tenant from a rental property due to various reasons, such as non-payment of rent or violation of the lease agreement. Understanding the legal intricacies of an unlawful detainer involves familiarity with specific procedures and documentation required by the courts.
The process typically begins with the landlord serving a notice to the tenant, specifying the issue and providing a period for compliance or resolution. If the tenant fails to comply within the specified period, the landlord can file an Unlawful Detainer action, which initiates legal proceedings. This action necessitates the submission of essential forms such as the Original Complaint (UD-100), Civil Case Cover Sheet (CM-010), Summons (SUM-130), and copies of relevant notices and agreements.
Regarding court fees, both parties have the option to submit a Waiver of Court Fees and Costs (FW-001) if unable to afford the fees. Upon serving the tenant and filing the necessary documents, the landlord can request a court date using specific forms like the Request/Counter-Request to Set Case for Trial-Unlawful Detainer (UD-150).
In case of the tenant's non-response or default, the landlord may pursue a Default/Clerk's Judgment and possession using documents like Proof of Service, Request for Entry of Default, Judgment by Default by Clerk, and Writ of Possession.
However, tenants do have legal rights and options, including filing a motion for a stay of execution to delay the eviction process for a limited period by paying rent for the extended time.
It's crucial to note that tenants must respond promptly within a specified timeframe, typically five calendar days, upon being served with an Unlawful Detainer action. Failure to respond may result in the landlord obtaining a default judgment.
The service of notices also holds significance, requiring adherence to specific methods such as personal service, substitute service, or "nail and mail" as outlined in legal guidelines.
Overall, an unlawful detainer involves a structured legal process with defined steps, forms, and legal implications, underscoring the importance of adherence to procedural requirements and seeking legal advice for further clarity or assistance in navigating these complex proceedings.
