What is an Unlawful Detainer?

Felicia Dye
Felicia Dye
Woman holding a book
Woman holding a book

Unlawful detainer can refer to the act of continuing to possess property without the legal right to do so. The term can also refer to the legal action that is taken to resolve such a matter. These issues generally arise when a landlord wants to evict a tenant but the tenant refuses to leave the leased property. Such cases are usually based on failure to pay, but they may be based on other lease agreement violations.

It is a common practice for a landlord and tenant to sign a lease agreement that permits the tenant to reside at a certain address in return for a certain amount of monthly compensation. Unlawful detainer commonly results when the tenant later breaches the contract by not making the payments that were agreed upon. Such a matter may seem quite simple and clearly in the favor of the landlord. These cases, however, are often very complex and lengthy.

When a landlord wants a tenant off his premise, he can request that the individual leave. If the individual refuses, in most jurisdictions a landlord may not, under any circumstances, attempt to physically force a person off of leased property. Instead, the landlord must file what is known in the United States as an unlawful detainer.

The rules and procedures for unlawful detainers tend to vary from one jurisdiction to another. Parties that file such claims should be careful to follow those procedures as they are outlined. If the filing party acts illegally or improperly with regards to the matter, the opposing party can challenge those actions. When this happens, it can result in delay or may even require the filing party to re-file.

The person who is accused of unlawfully detaining property has certain rights. The accused individual must be given notice that eviction proceedings are underway. She must also be given the opportunity to appear in court and present her side of the case.

There are numerous possible outcomes in an unlawful detainer case. A tenant may be allowed to stay if she pays the outstanding rent before the landlord takes possession of the property. If the refusal to pay was based on disrepair or safety hazards of the property, the court may rule in favor of the tenant.

Success for the landlord can lead to the intervention of law enforcement. In some instances, people still do not wish to vacate the premise after a court has ordered them to do so. In these instances, a sheriff may be called to ensure the court's orders are executed. Some cases which are ruled in favor of the landlord do not result in immediate eviction of the tenant. A judge may allow the tenant to remain on the leased property to prevent undue hardship.

In the US, the rules and procedures required in the event of an unlawful detainer are based on the constitutional rights of due process. Many other countries also have similar laws and procedures based upon similar principles. These may, however, be referred to in different legal terms.

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