Unlawful Detainer Procedure

The legal process for evicting a tenant is referred to as “Unlawful Detainer.” In order to legally evict a tenant the landlord must follow some important and necessary steps. Failure to properly follow the procedure can lead to your case being dismissed, or eventually losing in trial, which means not only does your tenant remain in your property, but you as a landlord may also be held responsible to pay for the tenant’s attorneys fees.

The eviction process starts by serving the tenant a notice. Depending on the nature of the tenancy agreement and the reason to evict the tenant, the notice can be as short as a 3 day notice or sometimes a 30 notice or even a 60 day notice is required. The notice aspect is crucial and must be strictly followed as there are a number of requirements that must be in the notice or your notice will be defective and your case will fail. Unfortunately, the landlord will often not be aware if the notice they served the tenant complies with the law in its entirety until the date of the trial. Finding out that the tenant was served with defective notice is one of the worst outcomes for a landlord. Not only will the landlord lose the trial, but the landlord will have to start the whole procedure over, and the tenant will continue to remain in the property and the landlord will continue to lose money.

After the notice period expires, the landlord can then file his/her “Unlawful Detainer” complaint in court. The tenant would then have five (5) days from service to file a response to the complaint. Once the case is at issue, the landlord can have the matter set for trial.

At trial, the Court will examine the notice, any rental agreements, and any other evidence each side presents. Testimony will be elicited from the landlord (or his/her agent) and the tenant. A determination will be made by the court and if the landlord is successful, a judgment for possession and if requested, a judgment for monetary damages will be awarded.

However, having the judgment for possession is not the end. The landlord must still take action to actually evict the tenant because the court will not evict the tenant. To properly do this, additional documentation would need to be processed to obtain the aid of the sheriff’s department to assist in evicting the tenant.

Although the whole procedure seems lengthy and overwhelming, if done correctly the landlord can legally reclaim possession to the property in a span of a few weeks. However, if it is defectively performed, the tenant can have a valid defense to remain in the property regardless of a breach in any rental agreements. Since everyday counts, it is crucial to meet all legal requirements. The Law Offices of Chung & Ignacio have experience in both successfully evicting tenants for the landlord, and also defending Unlawful Detainer actions based on legal arguments.

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