By Matt Dickstein
This article gives a short overview of
evictions (unlawful detainers) from a landlord’s perspective. When you, the
landlord, need to evict a tenant, you may not use self-help
measures to remove the tenant. For example, you may not lock out the
tenant, cut off utilities or place a baseball bat strategically upside the
tenant’s head. Instead you bring an unlawful detainer lawsuit against the
** Note #1: If you
purchase properties in foreclosure and are interested in the eviction of the
occupants, go to my article,
Foreclosure Evictions / Unlawful Detainers. **
** Note #2: To learn about the first step in evictions,
the 3-day notice, go to my article
Starting a Commercial
Eviction: the 3-Day Notice. **
Unlawful Detainer Process. An unlawful detainer lawsuit moves
fast. It begins when the landlord files a complaint. In most cases, the
tenant has only 5 days to answer the complaint. Once the tenant files an
answer (or fails to answer, in which case the landlord takes a default), the
court can render judgment within 20 or so days. Compare this to most
litigation which takes years to finish.
If the tenant files an answer
and defends the case, the court holds a hearing where the parties present
their cases. If the tenant wins, it may stay in the premises and perhaps
recover its attorney fees from the landlord.
If the landlord wins, the court
will issue a writ of possession. The writ of possession orders the sheriff
to remove the tenant from the premises. The tenant has 5 days from the date
that the writ is served to leave voluntarily. If the tenant does not leave
by the end of the 5th day, the sheriff may lock the tenant out and seize the
tenant’s property in the premises. Once the sheriff has removed the tenant,
the landlord may reclaim the premises. The court also may award the
landlord any unpaid rent, court costs, plus attorney’s fees if the lease has
an attorney’s fee clause.
A landlord’s minimum costs in an unlawful detainer action are around $1,500
in attorney’s fees plus around $800 in filing fees and service of process
costs. The $1,500 applies if the tenant does not file an answer. If the
tenant files an answer and defends the case, or files in bankruptcy, then
attorney’s fees go up.
The eviction process takes a minimum of 1 ½ months to finish, from
pre-complaint notice to sheriff lockout of the tenant. The minimum time
applies if the tenant does not answer the complaint and you take a simple
default. If the tenant raises defenses or files in bankruptcy, however, the
eviction will take many more months.
It’s easy to foul up an
unlawful detainer case, including the notice period, complaint, service of
process plus a host of other requirements. For example, sometimes it’s hard
to keep track of the various notice periods and response periods that
apply. Pre-complaint notice periods range from 3 days to 30 to 60 to 90 to
something else. After you file the complaint, tenants then have various
deadlines for filing a response depending on how you made service. Also
factor in the separately running response time for a
Prejudgment Claim of Right to Possession.
In unlawful detainer cases, courts will
not cut you any slack. The court will make you start over at the beginning
for each mistake and you’ll lose valuable months. You need to do the job
right the first time.
That’s it for
my short overview of evictions. This is just an
introduction designed to let you see the forest for the trees. To explore
all details would require a multi-volume treatise. Evictions can be
tricky and there’s a lot of law out there. If you do nothing else, get a
lawyer to help you. Good luck.