Expert Interview: What You Should Know About an Unlawful Detainer

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RentCafe is bringing you a series of interviews that address the most common landlord-tenant legal matters. Our goal is to inform you of your options and to give you a sense of perspective and confidence when tackling these matters.

When renting an apartment, there are certain actions you would never want your landlord to take against you, and an unlawful detainer is one of them. If you have never been served one, then you are most probably a compliant tenant who pays rent on time. Whether you simply want to stay informed or you or someone you know have been served with a complaint for unlawful detainer, there are some important things you should know.

To shed light upon this topic, we have approached attorney Joseph Tobener, a partner at Tobener Ravenscroft LLP, a full-service tenant rights law firm in the San Francisco Bay Area. Mr. Tobener has 15 years of experience in advocacy on tenant law issues.

Here are his answers to some frequently asked questions on this topic, that apply to the San Francisco Bay Area:

What is an unlawful detainer and why are you being served one?

In California, a lawsuit to evict a tenant is called an unlawful detainer. Prior to filing and serving an unlawful detainer, your landlord will have likely served you a notice to terminate your tenancy. Generally, in California a landlord does not need cause to evict a tenant. With the proper notice, they can simply terminate your tenancy at the end of your lease term. However, in jurisdictions with eviction control, such as San Francisco, a tenancy can only be terminated for cause. Regardless of the jurisdiction, your landlord cannot physically remove you from the property or change the locks – the landlord must go through the court to evict you.

In an unlawful detainer lawsuit, the landlord is the plaintiff and the tenant is the defendant. The matter will be set for trial and – unless settled before the trial – the court will decide if the landlord may oust the tenant and regain possession of the property.

An unlawful detainer can negatively affect your ability to rent in the future if you lose at trial. If the landlord has an uncollected money judgment for back rent against you, it may show up on your credit report. Further, evictions are public record for seven years. Tenants who have been served an unlawful detainer should immediately consult with an attorney.

What are your options when you receive an unlawful detainer complaint?

Unlawful detainers are complicated lawsuits that move quickly. Tenants should not handle it themselves. If you have been served an unlawful detainer complaint, you may choose to move out and not resist the eviction, which will force the landlord to dismiss the unlawful detainer against you. However, the landlord will still likely seek to recover any rent you owe them through a small claims court action against you.

You can choose to not respond to the lawsuit at all. But, by not filing a response to the complaint, the landlord will obtain a default judgment against you, which essentially means that the landlord automatically wins the lawsuit. The landlord will then take steps to have the sheriff remove you from the property, and they will pursue collection of any money judgment they have obtained against you for back rent.

The final and best option is to respond to the lawsuit in a timely manner. There are many ways to fight an eviction or, at the very least, come to a settlement for a reasonable move-out.  If the relationship between the tenant and the landlord are to the point that the landlord is serving the tenant an unlawful detainer complaint, it is best that the tenant remains at the property and immediately speaks with an attorney to understand their rights and possible defenses, as well as the eviction process and any time limitations.

The attorney will first confirm if the paperwork itself is unflawed and valid. The attorney will also check to see if the service (i.e. delivery) of the documents on the tenant was executed properly. Once these items are reviewed, the attorney will complete an appropriate response on the tenant’s behalf and file it with the court. The most common responses to an unlawful detainer are an Answer, a Demurrer, or a Motion to Quash. In California, if the tenant was personally served the Unlawful Detainer, the tenant has only five days to file their response.

If you cannot afford an attorney, you can visit a local nonprofit tenant rights organization for help. The court where the matter was filed usually has a self-help center as well, where a clerk assists tenants in filling out responsive forms.

In many instances, especially in rent-controlled jurisdictions, landlords will attempt an eviction in bad faith. That is, they may have no real basis for forcing you to leave other than they wish to re-rent the unit at a higher rate. This is illegal. In these situations, the tenant may have an affirmative claim against the landlord for wrongful eviction.

The most important thing to know about unlawful detainers is that if you are served with one, do not ignore it. There are strict time limits within which the tenant is required to act.

What happens if your case goes to trial?

If the unlawful detainer has been filed, properly served, and the tenant has answered the complaint, the matter will be set for a trial date within twenty days. These proceedings are fast-tracked.

There will be a mandatory settlement conference prior to your trial date. You will have an opportunity to negotiate a solution to avoid the trial and the potential eviction. Typically, a reasonable move-out date to give you time to find another place to live can be agreed upon at the settlement conference. And, if you owe back rent, there is a chance that can be negotiated away or at least reduced. When you and your landlord have come to an agreement, you will both sign a settlement agreement. Once all the settlement terms and conditions have been met, your landlord will dismiss the unlawful detainer.

If there is no settlement, there will be time for the parties to further negotiate a possible settlement while they are waiting for their matter to be called on the day of the trial. If an agreement still cannot be reached, the trial will proceed.

Trials can be with a jury or without one. It is usually to the tenant’s advantage to demand a jury trial. Each side will be allowed to testify themselves, present witness testimony, and provide evidence that has been gathered through the pre-trial discovery process. Unlawful detainer trials, on average, last a day. If the tenant loses at trial and is to be evicted, the landlord will obtain a Writ of Possession, giving the sheriff authority to physically remove the tenant from the property. The sheriff will post a five-day notice to vacate at the property and will remove the tenant once that notice has expired.

If the tenant is unable to leave within that time period, they may seek a Stay of Eviction from the court, which will provide up to forty more days for the tenant to remain in the unit. The tenant will be required to pre-pay for every day they are granted to stay in the property.  Depending on the jurisdiction, the court will be sympathetic to the first request for a stay but will be unlikely to grant an additional request.

Unlawful detainers are complicated. It is not advisable for a tenant to handle this matter without an attorney. Often there is more at stake than just possession. Leases usually have attorney fee provisions that allow prevailing parties to collect their fees against losing parties. And, evictions are reported by credit agencies.

Are there any state-specific regulations that renters living in the State of California should be aware of?

Each state has their own landlord-tenant laws. The State of California not only has its own laws but some cities and counties within the state have their own local ordinances. These local ordinances mainly pertain to rent and eviction control, health and safety issues, noise and nuisance control, and discrimination. There are also federal laws to be aware of. Therefore, it is important to note that being aware of only the state law on a particular issue may not give landlords and tenants the full picture of the law.

With that said, some relevant California state-specific laws that are either not found in most other states or are stricter here than in other states are the following:

  • Local Rent Control Ordinances – One of the most important things to be aware of, whether you are a landlord or a tenant, is if the rental property falls under a local rent control ordinance. There are fifteen cities in California that have these ordinances.  In a rent-controlled jurisdiction, a landlord is only allowed to raise the rent a certain percentage each year and can only evict a tenant for one of the just cause reasons.
  • Costa-Hawkins Rental Housing Act – This law is relevant to the fifteen California cities that have rent-control ordinances. Costa-Hawkins exempts certain types of property (e.g. single-family homes, condominiums, and others) from local rent control ordinances.  In these jurisdictions, both landlords and tenants should be aware of whether or not the rental property falls under rent control.
  • California Fair Housing (housing discrimination) – In the state of California, the Fair Employment and Housing Act (FEHA) and the Unruh Civil Rights Act (Unruh Act) are the laws that govern housing discrimination. The FEHA conveys broader protections than federal law as it prohibits housing discrimination based on race, color, national origin, religion, sex, familial status, disability, as well as source of income, gender, gender identity, gender expression, sexual orientation, marital status, ancestry, or genetic information of that person. CAL. GOV’T CODE § 12955.  And the Unruh Act prohibits housing discrimination based on sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status.  CAL. CIV. CODE § 51.
  • Medical and Recreational Cannabis Laws – The use of medical marijuana became legal in the state with the passage of the Compassionate Use Act of 1996. CAL. HEALTH & SAFETY CODE § 11362.5.  Then, on November 8, 2016, California voters approved the Adult Use of Marijuana Act (also known as Proposition 64), which legalized the recreational use of marijuana for individuals twenty-one years or older.  Landlords can prohibit tenants from smoking in the rental property, but when a lease is silent on smoking, can a tenant be prohibited from smoking marijuana? Is a tenant that requires the use of medical marijuana entitled to a reasonable accommodation?  Currently, because state law conflicts with federal law, the effects on landlord-tenant laws remain unclear.
  • Immigration Status – California’s Immigrant Tenant Protection Act prevents landlords from discriminating against tenants and prospective tenants based on their immigration status.  Landlords cannot ask a tenant about their immigration status, disclose or threaten to disclose a tenant’s immigration status, and cannot evict a tenant based on their status.
  • Harassment and Retaliation by Landlord – It is illegal for a landlord to induce a tenant to leave a unit by the use of “force, willful threats, or menacing conduct”; by threatening to disclose the citizenship status of the tenant or the tenant’s guests; by entering the tenant’s unit in substantial violation of the law; and to take, deprive, or remove the tenant’s property from the unit without consent. CAL. CIV. CODE § 1940.2.  Additionally, the state’s anti-retaliation statute prevents a landlord from harassing a tenant after the tenant has asserted rights under law.  CAL. CIV. CODE § 1942.5.
  • Landlord Entry – A landlord may only access the unit for certain reasons, such as emergency, repairs, a court order, or if the tenant has vacated, during business hours, and upon reasonable notice – twenty-four hours’ notice, unless it is an emergency then no notice is required. CAL. CIV. CODE § 1954.

While the above is an illustration of some of the unique California state-specific laws, a person should also consult federal law and local ordinances to determine what affects, if any, they have on the laws where they live.

Disclaimer: This article is for informational purposes only and should not be construed or used as legal advice. The answers to the questions have been provided in full by the attorney interviewed and they apply to the states or areas where he is licensed. RentCafe is not engaged in rendering legal advice and/or legal services to you and makes no representations about the suitability, accuracy, completeness, usefulness, or legality of any content, information and/or material contained on this site. In case of a legal dispute with your landlord or any other legal matter, you should consult a licensed attorney.

Related post: Which States Have the Best and Worst Laws for Renters?

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Marina is a marketing content developer for RENTCafé.com. She likes to research and write about real estate market trends and their impact on the nation's social scene. She also writes essays about significant films and TV shows. If you want to get in touch you can email her @

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