Unlawful Detainer

“The act of retaining possession of real property without legal right.”

The Eviction Process

Landlord is the “Plaintiff”Tenant is the “Defendant”Summary Court procedure: Court moves forward

very quickly and only gives defendant a short time from receipt of 3-day notice to pay or move; if not, then answer the charges in the complaint – typically 5 DAYS!

If defendant files answer within 5 days of receipt of complaint, the court will hear and decide the case within 20 DAYS.

If defendant does not answer complaint = default judgment against tenant. Tenant must move.

Unlawful Detainer Lawsuit

Landlord cannot force a tenant to move using self-help means to evict:

Landlord cannot physically remove or lockout tenant

Landlord cannot cut off utilitiesLandlord cannot remove windows or doorsLandlord cannot take tenant’s belongings to carry

out an eviction.If Landlord violates process, he/she may be liable

for damages to tenant, plus $100/day during the period of violation.

Landlord Must Use Court Procedure

Plaintiff and Defendant present evidence to the judge or jury (jury trial not recommended).

Plaintiff’s Cause of Action: Non-payment or health/safetyDefendant’s Defenses: Not properly served, Condition of

premises, Discrimination, Retaliation: Documentation & Witnesses

If the decision is in favor of the landlord, a Writ of Possession orders the sheriff to remove tenant, but gives tenant 5 days from receipt of writ to vacate rental unit voluntarily.

Failure of tenant to vacate voluntarily within 5 days will result in the sheriff physically removing and locking out the tenant, as well as seizing all tenant belongings in rental unit.

Court Proceedings and Decision

If the decision favors the tenant, he/she does not have to move, but must pay whatever rent the court orders.

The losing party has the right of appeal.

Court Proceedings and Decision

Filing for a bankruptcy petition will not always prevent eviction.

After October 17, 2005, a tenant is normally entitled to an immediate automatic stay of pending unlawful detainer action.

The landlord may petition the bankruptcy court for permission to proceed with the eviction, i.e., “relief from the automatic stay.”

The court can continue the stay or lift the stay if landlord shows that he is entitled to relief.

Eviction and Bankruptcy

The automatic stay normally does not prevent the landlord from enforcing an unlawful detainer judgment that was obtained before the tenant’s bankruptcy petition was filed.

The 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, though it will remain in effect for 15 days after the landlord files the certification with the court.

Eviction and Bankruptcy

OLGA AND BENIGNO

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