Unlawful/Forcible Detainers Attorneys


Unlawful/Forcible Detainers Lawyers

Unlawful detainer is a summary proceeding for the restoration of possession of real property in three statutorily-specified situations:

  • Landlord against tenant for wrongfully holding over or for breach of the lease;
  • Landowner against employee, agent or licensee upon termination of the employment, agency or license relationship upon which the right of occupancy was based:
  • Purchaser at sale under execution, foreclosure or power of sale in mortgage or deed of trust, against the former owner and possessor

Unlawful detainers and evictions are afforded precedence over other civil actions, and are resolved relatively quickly because they adjudicate only the right of possession and damages incidental to the unlawful detention.

The significant limitation is that an unlawful detainer will not lie against a defendant who is not in possession of the premises at commencement of the lawsuit. Possession is the fundamental issue in unlawful detainers and, if the question of possession is moot, no other “collateral” relief may be obtained in an eviction action.

Forcible Entry

If there is no privity of relationship between landlord and occupant—i.e., the occupant is a trespasser (neither a tenant nor tenant's assignee or sublessee)—the landlord may regain possession through a forcible entry or forcible detainer proceeding. As with eviction actions, forcible entry and detainer are summary proceedings involving the limited questions of possession and damages incident to the unlawful possession.

In some cases, the landlord (plaintiff) should consider joining forcible entry and detainer actions with an action for unlawful detainer filed in the alternative. Both actions seek prompt recovery of possession, and are governed by the same statutes.

Ejectment

The common law action of "ejectment" is an alternative remedy for property owners seeking to recover possession and damages from unlawful occupants. The essence of the action is recovery of possession. Unlike unlawful detainer, forcible entry and forcible detainer, ejectment is not limited to a narrow class of defendants (tenants; or occupants wrongfully holding over after sale per CCP § 1161a). It thus may be the most appropriate cause of action to recover possession where defendant's status or title to property is in issue.

Ejectment, of course, is not the landlord's exclusive remedy; nor, ordinarily, should it be the preferred remedy. Having defaulted under the lease, the tenant is subject to a notice of termination and subsequent unlawful detainer. As has been noted, unlawful detainer (unlike ejectment) is a summary proceeding; and (unlike in ejectment or other general civil actions), the tenant's responses are limited. When restoration to possession is the landlord's primary goal, unlawful detainer is clearly the most expeditious remedy.