What You Should Know About An Unlawful DetainerFebruary 22nd, 2006 by aptsherpa
Unlawful detainer: sounds scary, but is it really? The answer is both yes and no. Unlawful detainer is a serious legal action that your landlord is only allowed to take against you if you’ve broken the terms of your lease. It’s a final, drastic move toward eviction that will almost certainly result in you moving out of your apartment. However, it’s also possible to avoid going to court over an unlawful detainer. Read on to learn more about what an unlawful detainer is and what you need to do about it.
Why you were served
Why did you get served with an unlawful detainer, anyway? You probably continued living in your apartment after your lease expired and you were asked to leave, or perhaps you stopped paying rent for a prolonged period of time. You may also have violated another term of your lease agreement, perhaps by having pets in an apartment where they’re not allowed, being so loud and disruptive that other neighbors are complaining, or doing something clearly illegal like selling drugs out of your apartment. This type of behavior is definitely not allowed, and you should definitely be moving out pronto. Whether you’re just lazy or you have nowhere else to go, you’ve put yourself in a really tough situation by staying in a place you’re not legally entitled to occupy. The first and most important thing you need to realize is that you’re being served with an unlawful detainer not only because you’ve done something wrong, but also because you’ve failed to respond to previous notifications of this fact. You are at fault here, and your landlord is simply making you accountable for it.
How you can get out of it: Get out of your apartment!!
The good news is that it’s extremely easy to escape the unlawful detainer you’ve been served. All you have to do is move out of your apartment, and the case will be dismissed by the presiding judge. Since the unlawful detainer action is solely about the occupancy of the apartment, you eliminate the need to hear the case by moving out. Your landlord may still press charges for unpaid rent or damages to the apartment, but the unlawful detainer case itself will be over. Keep in mind that unlawful detainer cases are specifically about occupation of the housing in question. By moving out, you provide a perfect solution to the situation. Your landlord may file another suit against you to recover unpaid rent, but you won’t have to deal with the unlawful detainer itself anymore.
Filing your Answer
Since unlawful detainer is a last resort intended to get you out of your apartment immediately, the proceedings move fast. Once your landlord provides you with notice of an unlawful detainer, you have 5 days to file a response. Start counting these days with the first day after you were served. If the last day of the five is a court holiday or weekend, you must file on the next day the court is open. Once you’ve completed your Answer form, available from your local district court, you’ll need to have a third party not involved in the case serve a copy of this form to your landlord for you, since you can’t serve the Answer yourself. This third party must be an adult and needs to sign a proof of service when sending the Answer to your landlord or the landlord’s attorney. Once the copy is sent to the landlord, you’ll also need to file your original Answer with the court serving this case. Since laws and filing times or procedures may vary by state, please check with your local court to verify your area laws. Once all the paperwork is filed, you’ll be on the fast track for a trial, which will probably happen within 20 days. As noted, all you have to do to avoid a trial in this situation is get out of your apartment—so do that, if at all possible.
It should be noted that unlawful detainer proceedings do not cover arguments about security deposits or rental losses (the rent you failed to pay to your landlord while still living in the apartment). Unlawful detainer proceedings also do not have provisions for you, the defendant, to file a cross-complaint against your landlord. If you have problems with your landlord’s actions, you’ll need to file a separate suit to address those issues.
Settling the situation
If you don’t file a response to the unlawful detainer within five days, you’ll be subject to eviction. Your landlord cannot evict you, but a local Sheriff can and will. It’s very important to take unlawful detainer seriously by filing a response and addressing the issue in discussion with your landlord, if possible. You’ll most likely want to settle the situation out of court, as having an unlawful detainer judgment against you can be a serious hindrance to your ability to rent property in the future. Moreover, settling without going to trial will save you time, legal fees, and a lot of hassle.
The best way to resolve the situation is probably by talking with your landlord. If the situation has become so extreme that you can’t deal with one another directly, you may want to schedule a legal mediation. You’ll probably work out a settlement involving you moving out as soon as possible and probably paying back rent to your landlord. If you’re able to reach a settlement, get it in writing, making sure everyone signs and keeps a copy. In addition, your landlord needs to notify the court as soon as possible that an agreement has been reached and the case no longer needs to be heard.
If you must stay
Should your case go to trial and result in a judgment in favor of your landlord, you still have the power to appeal the decision in court. If you’re in a situation of extreme hardship and are unable to leave your apartment immediately, you can also file for a stay of enforcement that may allow you to remain in the property if you doing so does not cause undue hardship for your landlord. Do note that you’ll still have to pay rent in advance in order to receive a stay.
The best solution: Avoid it altogether!
The best way to deal with an unlawful detainer is to avoid being served with one in the first place. Pay your rent on time, move out on time, and follow the other terms of your lease. Your landlord gives you a place to live. You should appreciate this service, not abuse it. It’s very unlikely that you’ll be served with an unlawful detainer unless you’ve committed some serious and repeated violations of your lease agreement. Be a good tenant and avoid creating a sticky situation for both yourself and your landlord: avoid unlawful detainer. Pay rent!