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You own a property owner or a landlord and some tenants have been unable to pay. As a result, you are forced into an unlawful detainer proceeding, also known as an eviction. But what are your legal rights and what are the next steps for this legal proceeding?

Unlawful Detainer

An unlawful detainer is when a person retains possession of a property without legal right. This means a tenant stays in an apartment or commercial space even after they have been formally notified that they have no right to stay in the property. When this happens the property owner or landlord needs to remove the tenant. If a tenant doesn’t voluntarily move out after the landlord has properly given the required notice to the tenant, the landlord is legally able to evict the tenant. To do so, a landlord must file an unlawful detainer lawsuit in superior court.

“Summary” Court Procedure

An unlawful detainer lawsuit is a “summary” court procedure designed to promptly resolve minor offenses through a simple procedure. Because this is a simplified process, the court action moves forward very quickly. This means the tenant only has a very short amount of time to respond to the lawsuit. In most cases the tenant has only five days to file a written response to the lawsuit once they have been served with a copy of the landlord’s summons and complaint. Typically, a judge hears and renders a decision on the case within 20 days of the tenant or landlord filing the request for a trial.

Preparing for Your Unlawful Detainer Case

Before appearing in court, you must carefully prepare your case. This means either hiring an attorney, or making sure you are prepared by following these steps. It’s advised you work with an attorney that is familiar with these types of cases. They are familiar with the law and the proceedings, and can help ensure you get a fair trial where your point of view is heard.

  • Be mindful that you only have 5 days from receiving the unlawful detainer to respond to the summons and complaint. Carefully read the summons to determine what you need to do next. The summons will have very specific information on how to answer the complaint and the strict timelines.
  • If not working with an attorney, talk with a housing clinic, tenant organization, or legal aid organization to understand the legal issues in your case and the evidence that you will need.
  • Request discovery of the evidence that may be helpful to your case or to preparing a defense. There will be evidence against you. You should know what it is so you can defend yourself.
  • Decide how you will present the facts that support your side of the case. You can have witnesses, letters, other documents, photographs or video, or other evidence as support for your side.
  • Have at least five copies of all documents that you will be using as evidence. A judge will want to see the original. Copies will be for the court clerk, your opposing party, for yourself, and for your witnesses.
  • Ask witnesses to testify at the trial. If a witness will not testify voluntarily, you can submit a subpoena. This is an order from the court for a witness to appear. The subpoena must be served on (handed to) the witness by anyone but you who is over the age of 18. A subpoena can be obtained from the Clerk of Court. If a witness requests witness fees at the time the subpoena is served you will need to pay them.

Because this process is court-administered, the tenant has the right to prove their case if they feel the landlord has no right to evict them. Both parties are able to present their evidence and explain their sides of the case. If a court finds a tenant has a good defense, the court will not evict the tenant and the tenant is free to stay in the residence. The landlord might have to, in this case, be ordered to pay court fees such as the tenant’s filing fee. A landlord might also be ordered to pay legal fees if the tenant sought legal advice. Attorney fees might need to be paid by a landlord if the rental agreement contains an attorney’s fee clause and if the tenant was represented by an attorney

A landlord is legally required to use this court process to evict the tenant. That means a landlord is not legally allowed to use self-help measures to force the tenant out of the property, such as locking out the tenant, cutting off utilities, removing windows or doors, or seizing the tenant’s belongings. A landlord MUST use the court procedure.

Using Unlawful Methods

If you are a landlord and use unlawful methods to evict your tenant as were listed above, you can be held liable for damages incurred by the tenant. This can mean penalties of up to $100 per day for the time that the landlord used the unlawful methods.

Writ of Possession

If the court decides in favor of the landlord, the court issues a writ of possession. This means a sheriff is able to remove the tenant from the rental unit. A tenant has five days from the date the writ is served to leave the property voluntarily. If by the end of the fifth day the tenant has not left, the writ of possession authorizes the sheriff to physically remove and lock the tenant out of the property. The sheriff can also seize the tenant’s belongings that have been left on the property. It’s important to know that a landlord is not entitled to possession of the property until after the sheriff has removed the tenant.

A court may award the landlord any unpaid rent if the reason behind the eviction was for a tenant’s failure to pay rent. The court also may award a landlord damages, court costs, and attorney’s fees (if the rental agreement or lease contains an attorney’s fee clause and if the landlord was represented by an attorney). Additionally, if a court finds the tenant acted maliciously in not giving up the property, the court is able to award the landlord up to $600 as a penalty. That judgment against the tenant remains on the tenant’s credit report for seven years.

Side note: Recent laws designed to curtail drug dealing and unlawful use, manufacturing, or possession of weapons and ammunition, are in place to permit a city attorney or prosecutor in selected jurisdictions to file an unlawful detainer action against a tenant based on an arrest report (or other action or report by law enforcement or regulatory agencies) if the landlord does not evict the tenant after receiving 30 days notice from the city. The tenant must be notified of the nature of this action as well as how to address this proceeding.

Bankruptcy and Unlawful Detainers

While the automatic stay of a bankruptcy can prevent some evictions, that is not always true. You will need to understand the laws around bankruptcy and eviction. A tenant considering bankruptcy because of the threat of eviction, or for any reason, should consult a bankruptcy expert.

Here’s some information about bankruptcy as it relates to unlawful detainer proceedings:

  • A tenant filing a bankruptcy petition after October 17, 2005 (the effective date of the 2005 Bankruptcy Act) is typically entitled to an immediate automatic stay (delay) of a pending unlawful detainer action. If a landlord has not already filed the unlawful detainer action, the automatic stay will prevent a landlord from serving a 3-day notice or filing the automatic stay action.
  • A landlord can petition the bankruptcy court for permission to proceed with the unlawful detainer action. This is called “relief from the automatic stay.”
  • The automatic stay may continue in effect until the bankruptcy case is closed, dismissed, or completed. But the court can also lift the automatic stay if a landlord believes he or she is entitled to relief.
  • An automatic stay normally does not prevent a landlord from enforcing an unlawful detainer judgment that was obtained prior to the tenant’s bankruptcy petition filing. In some cases, however, a tenant may be able to keep the automatic stay in effect for 30 days after the bankruptcy petition is filed.
  • An automatic stay does not apply if the landlord’s eviction action is based on the tenant’s endangering the rental property or using illegal controlled substances on the property. The landlord is able to file a required certification with the bankruptcy court in this instance. The stay normally remains in effect for 15 days after the landlord files the certification with the court.
  • A bankruptcy case can also be dismissed for “cause.” An example of this is if a tenant neglects to pay fees or file necessary schedules and financial information, causes an unreasonable delay that causes harm to the landlord, or files the case in bad faith.

Working with an Attorney

If you are seeking eviction because you are unable to pay and are considering filing for bankruptcy, you should work with an attorney that can advise you on what to do. They will be able to look at your financial situation and determine if you are a good candidate for bankruptcy. While bankruptcy can solve problems, it cannot solve everything. You might still face an unlawful detainer action if the landlord decides to press further charges for other reasons. Working with an attorney is the best way to get yourself out of a bad situation.

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