Real Estate Newsletter
Holdover Tenants and Unlawful Detainer Actions
In a typical lease agreement, the landlord will usually reserve the right to evict a tenant that fails to pay rent. Eviction of “holdover” tenants (those who fail to leave upon the expiration of the lease term) is also generally permitted.
Most states forbid the landlord from resorting to self-help; instead, the landlord must adhere to local laws and pursue available legal remedies.
Statutes exist in nearly all jurisdictions that permit landlords to use “summary proceedings” to evict tenants. A summary proceeding is a judicial proceeding that permits the landlord to regain possession of leased property in an expedited fashion. An unlawful detainer action is an example of such a proceeding – it grants the landlord a speedy remedy for the recovery of rental property.
However, a landlord may only utilize an unlawful detainer action when the tenant is in unlawful possession of the rented premises (e.g., a holdover tenant or one who has failed to pay rent). Further, before the landlord may initiate an unlawful detainer action, he must first demand that the tenant relinquish possession of the property.
In jurisdictions where a statute provides for an unlawful detainer action, the landlord typically may not resort to self-help (physical force) to evict a tenant. Instead, the landlord must utilize the legal process in order to regain possession of the property.
Today, a majority of states follow the modern rule requiring landlords to pursue available legal remedies. California, for example, strictly forbids the use of self-help. To legally evict a tenant in California, the landlord must first serve the tenant with notice, and then wait for the statutory period of time. If the tenant fails to comply with the terms of the notice within that period of time, the landlord may then file an unlawful detainer action to regain possession.
However, other jurisdictions have not yet abolished self-help as a remedy to evict a tenant. While a few jurisdictions authorize any entry that does not involve violence or a breach of the peace, other jurisdictions consider mere threats of force to be equivalent to forcible entry, even if no force is actually used.
An unlawful detainer statute will typically require the landlord to give the tenant notice to vacate the property. Typically, a specific number of days must pass before the landlord may terminate the lease and initiate the unlawful detainer action.
Furthermore, the landlord must comply with the terms of the unlawful detainer statute, even if the rental agreement permits the landlord to repossess the property and eject the tenant.
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