When a tenant unlawfully retains possession of a property, it is referred to as an unlawful detainer. This legal process is often referred to by both landlords and tenants as the eviction process, and it is a serious legal process that can dramatically impact the rights of both parties to a lease. Typically unlawful detainer occurs when a tenant of either a residential property or a commercial property remains in the leased property after the landlord has given proper notice for the tenant to vacate the premises and commonly follows the failure to pay rent, thought it may be triggered by other lawful requests to vacate the premises as well. In order to remove the tenant when the tenant will not voluntarily vacate the premises, the landlord may begin proceedings to have the tenant evicted. To get the proceedings started, the landlord can file an unlawful detainer lawsuit in a court with proper jurisdiction.

Unlawful Detainer Procedures

Unlawful detainer actions are designed to navigate the court process quickly in order to resolve issues between landlords and tenants in a timely manner. Due to the simple nature of the process, which can often be initiated with standard unlawful detainer forms, the actions tend to progress quickly through the court process. As a result, the tenant has a limited amount of time to answer unlawful detainer lawsuit from the time of the the landlord’s initial filing of the action. While the time to respond may vary from jurisdiction to jurisdiction, tenants typically only have a matter of days to respond from the time they are initially served with the lawsuit. From the time the parties request a trial, it may be less than a month before the judge will hear the case.

Unlawful Detainer Defense

While the process of the unlawful detainer action is typically simplified in order to accommodate parties who are not represented by an attorney, it is advisable to consult with an attorney if possible to ensure you are prepared to defend your unlawful detainer case. An attorney can help you ensure that your trial is fair and that all relevant information is presented in your defense. Review all paperwork served upon you by your landlord to ensure that you are aware of all relevant deadlines, keeping in mind that the unlawful detainer answer is typically due within just a few short days following service. The summons that is served with the initial complaint will provide the timelines and information on how to file your answer.

If you cannot afford to work with an attorney, many local legal aid organizations provide assistance to homeowners that need help navigating the legal process related to attempted evictions. You should provide your attorney or any agency assisting you with your defense any information that you have pertaining to your rights, including a copy of your lease, documentation of any rent payments, copies of communications with your landlord, and any relevant photographs or videos that demonstrate facts that support your defense.

It is also possible to call witnesses to aid in your defense at trial. Typically it is preferable to rely on witnesses who are willing to help you in your defense. However, if an important witness that is essential to your defense is not willing to testify voluntarily, you can use the court processes to subpoena the witness in question. A subpoena is an order from the court that has jurisdiction over your case which requires the individual witness to appear personally in court at the specified time. Typically the clerk of court can assist you with getting subpoenas completed and served.

To defend an action for unlawful detainer, the tenant needs to show that the landlord has no legal right to evict them from the property. If the court agrees with the tenant that the tenant has an appropriate defense to the action, the court will refuse to evict the tenant, and the tenant may stay in the residence for the term of the lease. However, if the court agrees the tenant has no valid defense to the eviction and is, in fact, unlawfully maintaining possession of the property, the court will order the tenant evicted from the property.

Unlawful Self Help

The unlawful detainer/eviction process is the legally prescribed method for a landlord to evict a tenant from the real property. If a landlord instead tries to use illegal measures, such as locking out a tenant, turning off utilities, or harassing the tenant, the landlord may be liable to the tenant for damages.

Eviction Process

If the court orders the tenant to be evicted, the court will issue what is called a writ of possession. This gives the local sheriff’s office the legal right to remove the tenant from the rental property. The writ of possession once served, will have a certain number of days to leave the property voluntarily. If at the end of the period for voluntarily vacating the property the tenant still remains in the rental property, the writ of possession gives the sheriff the right to physically remove the tenant from the property and to lock them out permanently. The tenant’s belongings can also be seized by law enforcement. The landlord is not legally entitled to possession of the property until the tenant has voluntarily left the property or has been physically removed by the sheriff.

If you are facing an eviction due to your inability to pay rent, it is important that you seek the assistance of a qualified attorney who is experienced in unlawful detainer actions. An attorney will help you look at your entire financial picture, your history with your landlord, the facts of your case, and any potential defenses to the eviction available to you under the state and local laws that govern your situation. Working with a qualified attorney to protect your rights is the best way to ensure you obtain a fair trial and get the best outcome from your unlawful detainer action.

Summary

Now you know what an unlawful detainer is and what the court procedure means. So, if you are unable to pay, because you are filing for bankruptcy, you need to work with a qualified attorney, who can advise you on what to do and how to solve your issue.

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"You will not be disappointed" John M.R. - Harrison, NY
"You will not be disappointed"
John M.R. - Harrison, NY