An unlawful detainer (UD) is a civil lawsuit brought by a landlord against an existing tenant to evict, or remove, the tenant from the landlord's property. This article focuses on the UD action after it has been filed by the landlord. There are many pre-lawsuit procedures and considerations involved when filing a UD action, some of which differ between residential and commercial tenancies. These pre-lawsuit considerations, and the differences between residential and commercial tenancies, will be discussed in a future article.

A landlord may choose to file an unlawful detainer action for a number of reasons, most commonly when: (1) the tenant fails to vacate the premises at the completion of the tenancy or rental term; (2) the tenant fails to pay rent; or, (3) the tenant violates the rental agreement so as to justify an eviction. Of course, as long as a tenant pays rent timely and abides by the rental agreement, the landlord will have no grounds to bring a UD action against the tenant.

A UD action is only appropriate while the tenant (the defendant) remains in possession of the premises. If the tenant is not in possession but owes past rent, the landlord's remedy is an ordinary civil action for breach of contract. In fact, if the landlord files a UD action while the tenant remains in possession, and the tenant vacates before trial, the case then becomes, with some exceptions, an ordinary civil action for breach of contract, and not a UD.

The difference between a UD and a breach of contract is significant. A UD action is quickly "fed through" the court system and often is set for trial within four weeks after service of the lawsuit on the tenant. In contrast, an ordinary civil action such as breach of contract can take from one to two years to go to trial. In order to assure that a tenant unlawfully on the premises cannot take advantage of the legal system by remaining in possession throughout an otherwise long, drawn out litigation process, the rules governing UD actions provide for an expedited trial schedule with the UD action taking precedence over ordinary civil trials. For example, in a typical civil action, the defendant has 30 days within which to respond to a complaint; in a UD, the defendant has five days.

On prevailing in a UD action, the landlord recovers possession of the property, and past rent due to date of judgment. In addition, if the lease agreement provides for it, the landlord will be entitled to attorneys' fees. (Attorneys' fees provisions are always reciprocal; if the tenant prevails, she would be entitled to attorneys' fees).

The UD defendant (the tenant) may respond to the complaint, but may not file a cross-complaint (which would, however, be permitted in other civil actions). The tenant may deny the allegations (for example, may claim that the lease term has not expired or that he or she is in fact current on rent payments, etc.), may defend on the basis of inhabitability (the property was missing basic elements such as heating or water), or may, among other things, claim that he or she has paid excess rent and request an offset against any claims made by the landlord.

Does this mean the tenant may never have an action against the landlord? No, it does not. If, for example, the tenant vacates before trial, the matter converts to an ordinary civil matter, and the tenant may then file a cross-complaint on the basis of, for example, invasion of privacy, breach of contract, fraud, or other tort actions (assuming, of course, the tenant has a claim outside of the issue of possession and past rent due).

When the court enters a judgment in favor of the landlord, she is entitled to immediate possession of the property (and, if applicable, past rent due). If the tenant refuses or fails to vacate, the judgment for possession may then be enforced by local sheriff or marshal (depending on jurisdiction). The landlord will notify the sheriff or marshal of the judgment for possession, who will then post a notice to the tenant to vacate by a certain date (usually within five days of posting). If, at the expiration of this period, the tenant fails to vacate, the officer(s) will remove (forcibly, if necessary) the tenant from the premises and allow the landlord to change the locks.

The tenant is given a limited period of time within which to retrieve any personal property remaining on the premises. The landlord must notify the tenant that he will remove and/or sell the tenant's possessions if they are not removed by the tenant. These time periods are set by statute.

The UD process is usually a relatively quick one, and in most cases, the entire action (including pre and post filing procedures) will have concluded within a two-month period of time. Both the landlord and the tenant should be aware of these expedited time periods lest they forego rights provided to them by the UD statutes.