An unlawful detainer and a forcible detainer have the same objectives — to legally remove an occupant from your rental property. So what is the difference? We discuss the distinguishing characteristics of the respective actions below.
Unlawful Detainer
Unlawful detainer is the primary method landlords use to evict tenants for nonpayment of rent or other material breaches of a lease. Cross-complaints and affirmative defenses unrelated to the issue of possession are not permitted. Discovery is limited given the streamlined nature of the process. Under California fast track rules the goal is to have the cases resolved within 30 days of filing. In reality, unlawful detainer actions typically are resolved within a few months of filing.
Forcible Detainer
The foundation of a forcible detainer action is the forcible exclusion of the original possessor by a person who has entered without right. Thus, Code of Civil Procedure § 1160 states that “[e]very person is guilty of a forcible detainer who either:
“By force, or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise; or,
Who, in the night-time, or during the absence of the occupant of the rental property, unlawfully enters upon real property, and who, after demand made for the surrender thereof, for the period of five days, refuses to surrender the same to such former occupant.”
In order to properly plead forcible detainer, the landlord must allege: that the landlord was in actual possession of the apartment at the time of entry; that a forcible entry has occurred (i.e., the landlord did not consent to the tenant’s possession). The complaint must also state that the landlord was deprived of possession of the apartment; the landlord is seeking to recover possession; the landlord sent the tenant a demand for possession; and the tenant thereafter refused to vacate.
As with all other Unlawful Detainer actions, a Forcible Detainer are summary proceedings involving the limited questions of possession and damages incident to the unlawful possession.
Other Similarities and Differences
In forcible entry, one is deprived of physical possession of any land or building by means of force, intimidation, threat, strategy, or stealth. In unlawful detainer, one unlawfully withholds possession thereof after the expiration or termination of his right to hold possession under any contract, express or implied. In forcible entry, the possession is illegal from the beginning and the only issue is who is entitled to actual possession of the property. In unlawful detainer, possession was originally lawful but became unlawful by the expiration or termination of the right to possess.
The pre-lawsuit Notice requirements are also different. In an unlawful detainer proceeding several different types of notices are available to start the process (e.g. 3 Day Notice to Vacate, 3 Day Notice to Pay Rent or Quit, 30 Day Notice to terminate the tenancy, etc.) In a forcible detainer action a 5 Day Notice to Vacate mut be served on the tenant as a condition precedent to going forward with an eviction proceeding.
When a landlord proceeds by way of unlawful detainer (or forcible detainer), the landlord cannot pursue “damages.” Instead, the landlord can pursue its right to possession of the property and incidental damages resulting from the tenant’s unlawful detention. If a landlord wants to pursue a claim for damages unrelated to the unlawful detention ( e.g., property damage the tenant causes), the landlord must file a separate lawsuit.
Please contact Lynx Legal with any questions regarding the above, or to discuss any issues relating to a contemplated eviction of your tenant. We can be reached at 888-441-2355 or info@lynxlegal.com. You can also schedule a free telephone consultation with one of our representatives on our website. Our experienced professionals are standing by to assist in any way we can.