Multifamily Blogs
Unlawful Detainer
Unlawful Detainer
Unlawful Detainer by Attorney Tamara Cross
Many community owners and managers have been through the unlawful detainer process. Not all of them, however, have encountered just how different and difficult one unlawful detainer action can be from another with regards to time frames, discovery and even trial. If you are lucky, your encounter with an unlawful detainer action took approximately three to four weeks and ended nicely in a default judgment without the need to go to court. This article will walk you through the non-default unlawful detainer action and address some of the options that resident/tenants have to delay the process and to make the unlawful detainer action a long, expensive experience. In discussing the difficult unlawful detainer trial, this article will address the delay tactics taken by residents and their attorneys, the defenses raised to complicate the issues, and finally, suggestions on how best to avoid these delays.Summary proceeding
The unlawful detainer trial was intended to be a “summary eviction proceeding,” which means it was intended to be a quick and limited proceeding in comparison to the general civil litigation matters. For example, in a general civil lawsuit, the defendant has 30 days to answer the complaint, but only five days to answer in an unlawful detainer action. Also, the trial in a general civil lawsuit may take over a year to be heard, where the unlawful detainer trial is required to be set within 20 days of the tenant’s answering. The issues in an unlawful detainer action are intended to be limited as well. The right to possession of the premises and the damages resulting from the unlawful detainer are the only issues that should be tried.
Despite the attempt to keep the unlawful detainer action quick and limited, resident defendants familiar with the system understand how to drag it out and delay the trial and the lock-out, so that the resident remains in the premises much longer than he or she should.
Avoiding service
The first and easiest delay tactic taken is to avoid service of the unlawful detainer complaint. Unlike the service of a termination notice (whether it be a three-day or 60-day notice), the unlawful detainer complaint must be personally served (or subserved) on the resident defendant. Clever resident defendants will avoid being served personally or subserved because this requires the owner to obtain a signed order to post and mail from the court. This can delay the lawsuit for several weeks, and give the resident defendant several more weeks to answer the complaint.
Attorney Tamara Cross, San Diego, California
