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Unlawful Detainer

If the tenant remains on the premises after the expiration of the notice (without correcting the breach if applicable), then the landlord may file an Unlawful Detainer lawsuit with the court, and have the documents personally served on the tenant (other methods of service are not ideal, as they allow the tenant more time to respond, while service by posting and mailing requires a court order).

The trial process is expedited due to the time sensitive nature of the matter (i.e. the landlord may be losing rent each day the tenant is in possession of the premises), and the tenant is allowed only five days to answer the complaint. If the tenant fails to respond, the landlord may obtain a Default Judgment, and Writ of Possession, and have the sheriff execute the writ by forcibly removing the tenants if necessary.

If the tenant does answer the complaint (which is always in their best interest, even if they have no reasonable argument for defense), the parties may set the matter for trial by filing the appropriate document with the court. The trial will be set by the court within twenty days. Typically, tenants request jury trials whereas landlords prefer bench trials. Each side is allowed to present witnesses or evidence to prove their case. Generally, in non-rent controlled jurisdictions, the landlord prevails unless they overstated the amount of rent due, committed some other fatal error in either the service of papers, or in the notice or complaint, or the tenant succeeds in raising affirmative defenses such as the landlord's "breach of the implied warranty of habitability." If the tenant has requested a jury trial it is likely the case will be settled via stipulation pre-trial since legal fees can be prohibitive. Typical settlements include the "pay and stay" (where the tenant pays off the backrent or cures the alleged breach in return for continued possession) or the "move-out deal" (where the tenant moves out in exchange for a waiver of backrent or some other amount of money).

A monetary judgment may only be obtained at trial, and not by default. It can be quite difficult to enforce a money judgment, unless the landlord knows the tenant's bank account information, or where the tenant is currently employed. Therefore, the primary objective of an Unlawful Detainer is to evict the tenant from the premises.

Landlord/tenant law, while not as complex as many other areas of law, is still too complicated for the average landlord or tenant to fully understand. Landlords may want to consider hiring an attorney to represent them in their case, as issues such as retaliation and habitability are commonly raised as a defense. Tenants are also well advised to seek legal advice regardless of if they can afford it. There are inexpensive or free legal aid centers for those who qualify in every major county that can assist tenants in the preparation of court documents.

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This article is licensed under the GNU Documentation License. It uses material from the Wikipedia article "Eviction".