Real Estate Law: What Is Unlawful Detainer?

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Real estate evictions are often difficult to accomplish based on the state, the tenant and landlord laws and what is permitted. Typically, an eviction is granted to the owner or manager of a rental or lease property where someone pays rent or makes payments on a lease.

The rights to remain within the building or unit may be removed by the landlord legally. However, there are often certain steps that must be taken before he or she has the ability to contact law enforcement to assist with taking the tenant out of the unit. One such legal process is an unlawful detainer.

When the landlord has gone to court for a special proceeding, he or she may have obtained an unlawful detainer. This is a legal process used to ensure someone is evicted from a property where the individual lives or works. While there are usual stipulations for this procedure, it is only when the person remains in the building after a lease or rental agreement has ended, when the lease or rental contract has been canceled or if the tenant has not paid rent in some time. Generally, the landlord provides an extension for rent payments, or an eviction notice may be issued with so many days to cancel the action through payment. However, this process may be chosen when the tenantís rights are stronger in the state.

Eviction Processes Started

When the landlord is not able to remove the tenant of a rental unit on his or her real estate property, it may be necessary to use force with or without the assistance of local law enforcement. When forcible removal is necessary, a court order is almost always required depending on the state. Many reasons to start the eviction process revolve around rent payments not being paid on time or for a continued period, if pets have been discovered when they are against the rental agreement, if illegal activity has been found to be active in the unit and similar actions on the part of the tenant.

The rental agreement most tenants sign stipulates in standard situations that a timely payment of rent must be accomplished or there could be late fees, eviction notice or termination of the lease. When a pet has been revealed to be on the premises, and this is against the lease or rental contract, it is possible to break the agreement or contract and remove the tenant along with his or her pet. Any illegal or criminal activities in or around the property could lead to legal complications, and the landlord is usually duty-bound to contact law enforcement for assistance in these matters. This could also cause a contract and rental termination.

Requirements and Filing with the Court

Because a landlord is not permitted to evict any tenant without the proper eviction notice, he or she must obtain additional notice through the court when the tenant does not comply with the eviction process. While this may not be necessary in every state, there are states with greater tenant protections cause the necessity. Provided the renter has been given the appropriate eviction notice and enough time to vacate the unit, the landlord has performed his or her duty. When the tenant refuses to leave for whatever reason, the owner or manager must then seek an action through the courts, and this is commonly known as an unlawful detainer action.

A complaint is filed with the court to include a filing fee. The court documents must be then served to the tenant. Because all previous processes have already been performed, an unlawful detainer proceeds rapidly. Then, the tenant must go through a trial by jury with his or her story explained and a judgment decided to evict or permit the individual to remain. If the person is not in attendance, the judgment is made in favor of the landlord by default. He or she may also be given compensation for the unpaid rent to include the payment of lawyer expenses and court costs.

Repossession and the Real Estate Lawyer

Once the tenant has been removed or leaves of his or her own volition, it is possible to repossess the unit and clear it out for the next renter. However, every process should be performed with the aid of a lawyer to ensure legality and legitimacy. It is possible with certain states that the landlord may be penalized if any step is not completed properly. Without the use of a real estate lawyer, the landlord may lose the case.


Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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