HomeUnlawful Detainers to Remove Unwanted Occupant
When there is no agreement to pay rent, an unlawful detainer lawsuit may be filed by a property owner (or a person in lawful possession of the property) to recover possession of the property from an unwanted occupant. While unlawful detainers are very similar to ejectments, the unwanted occupant in an unlawful detainer cannot claim he/she has legal or equitable title, interest, or a right to the property.
Unlike ejectments, unlawful detainers are summary proceedings, so the unwanted occupant only has 5 days to respond to the complaint. Unlawful detainers are commonly filed by a property owner against a family member, friend, or romantic partner who refuses to leave. Below is an example of how an unlawful detainer may be used as a legal course of action.
Ann and Jerome are romantic partners who live together in a house owned by Ann. Ann allowed Jerome to move in temporarily after he was suddenly laid off. Now, Ann wants Jerome to leave because he is not contributing to the bills, but Jerome is refusing to leave. Since there is no landlord-tenant relationship between Ann and Jerome, and Jerome does not have a claim to the home, Ann should file an unlawful detainer lawsuit to remove Jerome from the home.
WHAT ARE YOUR RIGHTS?
The Plaintiff is the person or party who files the Unlawful Detainer lawsuit with the court to remove another person from the housing property.
You have the right to be represented by an attorney.
You have the right to ask the court to enter a Default and Default Final Judgment for Possession, if the Defendant does not timely file a response to your complaint.
You have the right to recover possessions, damages, and costs from the Defendant if you win the lawsuit.
The Defendant is the person who has a lawsuit served against them in court. In this situation, the Defendant is the person being removed from the housing property.
You have the right to be represented by an attorney.
You have the right to ask the court for additional time to file your response.
You have the right to ask the court for additional time to remove your personal property if you lose the lawsuit.
You have the right to recover costs from the Plaintiff if you win the lawsuit.
WHAT DO YOU NEED TO DO?
If you file an unlawful detainer lawsuit, you are the Plaintiff.
The lawsuit must be filed in county court, in the county where the property is located.
You must attach proof of ownership or rightful possession of the property to the complaint, such as a deed, and state how you acquired ownership of the property, or a lease.. This is sometimes called the “chain of title” or “rightful possession of the property.
You must prove you have a superior right to the property than the Defendant.
You must pay for the filing fee, summons, and service of process, unless you are determined to be indigent by the clerk’s office.
You must use the sheriff or a certified process server to serve the Defendant with the summons and complaint.
If you have received an unlawful detainer summons and complaint, you are the Defendant. The summons and complaint may be personally delivered to you or posted on your door, by the sheriff or a certified process server. This is called “service of process.” The clerk may also send you a copy of the summons and complaint by mail.
You must write and file a response with the court, within 5 days of receiving the summons and complaint. If you do not file a response with the court on time, the Plaintiff may automatically win the unlawful detainer and you will be defaulted by the Clerk of Court or the Judge. In your response, admit or deny each paragraph of the complaint and raise any defenses.
Below is a list of common defenses that may apply to your situation.
The Plaintiff lacks standing. This means the Plaintiff does not have the right to file the complaint with the court. This defense is commonly used if the Plaintiff does not actually own the property, or does not have a right to possess the property.
A landlord-tenant relationship exists. This means you and the Plaintiff have an agreement to pay rent.
You may attach supporting documentation to your response, such as your lease.
WHAT TO CONSIDER BEFORE TAKING ACTION?
Before filing a lawsuit, tell the unwanted occupant he/she no longer has permission to live in the home. Written notice is not required, but is highly recommended.
Do not make substantial repairs to someone else’s property unless you have a written agreement with the property owner or the person in lawful possession of the property. Also, make sure the person in lawful possession of the property has the right to enter into this type of agreement on behalf of the property owner.
Financial contributions toward household goods and expenses do not establish an interest in the property.
