Many community owners and managers have
been through the unlawful detainer process. Not all
of them, however, have encountered just how different
and diffi cult one unlawful detainer action can be
from another with regards to time frames, discovery
and even trial. If you are lucky, your encounter with
an unlawful detainer action took approximately three
to four weeks and ended nicely in a default judgment
without the need to go to court. This article will walk
you through the non-default unlawful detainer action
and address some of the options that resident/tenants
have to delay the process and to make the unlawful
detainer action a long, expensive experience.
In discussing the diffi cult unlawful detainer trial,
this article will address the delay tactics taken by
residents and their attorneys, the defenses raised to
complicate the issues, and fi nally, suggestions on how
best to avoid these delays.
Summary proceeding
The unlawful detainer trial was intended to be
a “summary eviction proceeding,” which means it
was intended to be a quick and limited proceeding in
comparison to the general civil litigation matters. For
example, in a general civil lawsuit, the defendant has
30 days to answer the complaint, but only fi ve days
to answer in an unlawful detainer action. Also, the
trial in a general civil lawsuit may take over a year to
be heard, where the unlawful detainer trial is required
to be set within 20 days of the tenant’s answering.
The issues in an unlawful detainer action are
intended to be limited as well. The right to possession
of the premises and the damages resulting
from the unlawful detainer are the only issues that
should be tried.
Despite the attempt to keep the unlawful
detainer action quick and limited, resident defendants
familiar with the system understand how to
drag it out and delay the trial and the lock-out,
so that the resident remains in the premises much
longer than he or she should.
Avoiding service
The first and easiest delay tactic taken is
to avoid service of the unlawful detainer complaint.
Unlike the service of a termination notice
(whether it be a three-day or 60-day notice), the
unlawful detainer complaint must be personally
served (or subserved) on the resident defendant.
Clever resident defendants will avoid being served
personally or subserved because this requires the
owner to obtain a signed order to post and mail
from the court. This can delay the lawsuit for
several weeks, and give the resident defendant
several more weeks to answer the complaint. The best
way to handle this is through the use of an attorney. A good attorney will
save you money in the end.