Unlawful Detainer

The act of retaining possession of property without legal right.

The term unlawful detainer ordinarily refers to the conduct of a tenant who is in possession of an apartment or leased property and refuses to leave the premises upon the expiration or termination of the lease. Typically, the landlord wishes to evict the tenant for not paying the rent or for endangering the safety of the other tenants or the landlord's property.

Under COMMON LAW a landlord was personally permitted to enter and remove a tenant by force for nonpayment or violation of the lease. U.S. state laws, however, require a landlord to file what is called an unlawful detainer action in a court of law. To satisfy the DUE PROCESS rights guaranteed to the tenant by the FIFTH AMENDMENT to the U.S. Constitution, the landlord must strictly follow the statutory procedures, or the tenant can challenge the unlawful detainer proceedings on technicalities and force the landlord to start over again.

Each state has its own type of unlawful detainer proceeding. In Minnesota, for example, the landlord must show cause (have a legitimate reason) to bring such an action. According to Minnesota law, legitimate reasons include the tenant's nonpayment of rent, other breach of the lease, or refusal to leave after notice to vacate has been properly served and the tenancy's last day has passed (Minn. Stat. § 566.03 [1992]).

Both landlords and tenants must take a number of steps in an unlawful detainer action. In Minnesota, for example, the landlord must file a complaint against the tenant in district court. The landlord must then serve the tenant with a summons (at least seven days before the court date) ordering the tenant to appear in court (Minn. Stat. § 566.05). Within seven to fourteen days after the summons is issued, a court hearing takes place, and both the tenant and the landlord are asked to give their sides of the story (Minn. Stat. § 566.05). The judge then delivers a decision. If the judge decides that the tenant has no legal reason for refusing to leave or pay the rent, the judge orders the tenant to vacate and, if necessary, orders the sheriff to force the tenant out.

If the tenant can show that immediate eviction will cause substantial hardship, however, the court may give the tenant up to one week in which to move. A delay based on hardship is not available if the tenant is causing a NUISANCE or seriously endangering the safety of other residents, their property, or the landlord's property (Minn. Stat. § 566.09, subd. 1).

If a tenant has paid the landlord or the court the amount of rent owed, but is unable to pay the interest, costs, and attorney's fees, the court may issue a writ of restitution that permits the tenant to pay these amounts during the period the court delays issuing an eviction order (Minn. Stat. § 504.02, subd. 1). If the unlawful detainer action was brought because the tenant had not paid the rent, and the landlord prevails, the tenant may pay the back rent plus costs and still remain in possession of the unit, provided payment is made before possession of the rental unit is delivered to the landlord. If the action was brought because the tenant withheld the rent due to disrepair, and the tenant prevails, the judge may order that the rent be abated (reduced) in part or completely.

Only a sheriff or sheriff's deputy can physically evict a tenant. The tenant must be given notice that an eviction order has been issued. Most states give the tenant at least twenty-four hours' notice before the sheriff arrives to perform the actual eviction.