A forcible detainer occurs if a person unlawfully holds possession of any real property through violence or threats, or unlawfully enters a rental unit at nighttime or during the occupant’s absence, and refuses to surrender the premises for five days after demand to return possession. To qualify for a Forcible Detainer action, the owner/lessor of the rental property must not have given the occupant permission to live in the rental property. In other words, there is no landlord/tenant relationship, so the occupant is a trespasser. When this occurs, the landlord may regain possession through a Forcible Detainer proceeding.
As with all other Unlawful Detainer actions, Forcible Entry and Detainer are summary proceedings involving the limited questions of possession and damages incident to the unlawful possession. A Forcible Detainer action is a subspecies of an Unlawful Detainer action.
The first step in evicting an unwanted occupant under forcible detainer law is to serve a five-day notice to vacate. The landlord must file a forcible detainer action in court if the occupant remains in possession of the property after the five-day notice period expires. This requires preparation of a Summons, Complaint, Prejudgment Claim of Right to Possession and other related pleadings. The defendant must ordinarily answer the complaint within five court days. No cross-complaints are allowed, and trial must ordinarily be held within 20 days after request for trial setting.
If the forcible detainer action proceeds to trial, a successful plaintiff must prove that (1) Plaintiff is the owner/lessor/original tenant of the rental property (2) Plaintiff was in peaceful possession of the rental property before she was ousted out of possession by the conduct of Defendants; (3) Plaintiff caused a 5 Day Notice to Quit-Forcible Detainer to be lawfully served on the Defendant; and (4) Defendant(s) failed to vacate the premises prior to the expiration of the Notice. The Court will order possession of the property to be returned to the Plaintiff if he can prove these elements. Plaintiff will also be entitled to monetary damages according to proof, and statutory damages not exceeding $600.00.
Contact Lynx Legal Services today at 888-441-2355 with any questions on the above issues, or if you are ready to start a case. We will promptly take the necessary steps to have the occupant removed, for a fraction of the cost of an attorney.