Eviction Concepts

  1. I received a Summons & Complaint (S&C) regarding Unlawful Detainer.  What does that mean?

A Summons and Complaint (S&C) are documents from the court.  You should not ignore these as they can have consequences if you do.  The Summons portion is generally a notice to show up to a courtroom at a specific time and place.  A Summons can also contain a request for information for the court regarding a specific case. 

The second term, that being Unlawful Detainer refers to the specific issue the court will be dealing with.  An Unlawful Detainer Action means that your landlord has gone to court and started a legal proceeding to evict you.  The purpose of an Unlawful Detainer Action is for your landlord to reclaim a piece of property that you are renting and someone, you or others are residing in.  This property can be any number of things, but it must be real property.  Real Property has several meanings but generally refers to land; this can be a house, apartment, or lot. There are several steps a landlord must take prior to you receiving an Unlawful Detainer Action against you.  The most relevant to you is that the landlord needs to give you notice that you must leave the rental property.  Notices will include the specific issue that is leading to the action, whether or not it can be cured or fixed, and the specific time and date you need to leave by to avoid court filings.  Additionally, the notice must be posted correctly and signed.  (Click here for our section on notices) Knowing all of these things can give you a jumping off point when negotiating with your landlord.  The majority of tenant successful Unlawful Detainer Actions come down to the negotiation.  

  1.  What are the parts of a Summons and Complaint?  Defense of improper service and process.  

One of the most important things for a tenant in dealing with eviction is having more time.  A defense of improper service and process can help you gain a bit more time.   A defense of improper service and process for our purposes is a way of telling the court that the filer, in this case the landlord, did not follow proper procedure that is mandated by law when sending you the S&C.  (Please click here for our ‘Notice’ requirements as they also have additional mandatory procedures.)   If the Landlord fails to follow proper procedures, they may be forced to refill and reserve you the S&C.  If they are this might create more time for you.  Success in the Defense of Improper service and process will not end your Unlawful Detainer, merely create more time for you.  

A S&C most include the following: It must include the names of the parties, both your name the landlord’s name and any other leased residences the landlord is attempting to evict.  The landlord may use the term Et al. to refer to all other residents, this is acceptable.  The S&C must include the cause of action, and the name of the court that action is being brought.  The cause of action is the reason the landlord is suing.  An example of cause of action might be if your rent is late, the cause of action would be failure to pay. The cause of action must be the same cause of action for which you received a notice to vacate or leave the premises.   The document may include the date it was filed.  Some landlords don’t actually file the document prior to delivery, and it may not include a date of filing, if this is the case you will receive another copy of the S&C with the date on it later.  This part is very important, the S&C will also list the date your answer is due.  An Answer is your response to the document, and you need to comply with it or risk a judgement against you.  (Click here to learn about what an answer is and how to write one).  The S&C must list several addresses.  It must list the address of the residence in question, and it must list the address where you can respond to the S&C.  The address for a response is going to be your landlord’s business address or that of his attorney.  You will use this address to communicate with your landlord.  Remember it is always best to communicate in writing, whether that is text, email, or letter, and keep a copy of everything.  Finally, the S&C should be signed by the clerk of the court, and the landlord or the landlord’s attorney.  

A S&C must follow certain rules of service of process.  Service of process is the act of notifying someone of impending court proceedings, like giving you a Summons for Unlawful Detainer (Link to Unlawful Detainer).  A Summons can be served in any of the following manners: It can be hand delivered to you.  It can be delivered to someone at your home or residence who is of suitable age, along with mailing it to the same address.  It can be posted to the door at eye level, along with being mailed to the same address.

  1. What is an Answer?

When you receive an Unlawful Detainer Summons and Complaint part of it will include the date by which you have to write an answer.  Writing an Answer is important, failure to send an answer to your landlord and the court by the allotted time can lead to a default judgement against you.  A default judgement is simply the court deciding the question before the court is uncontested.  In your case the question the court is deciding on is whether the landlord can reclaim the property by evicting you.  The default judgement will mean the court sides with the landlord and the landlord may move forward to having you evicted.   

An Answer is your response to the accusations in the Summons and Complaint (Click here for a link to Unlawful Detainer Summons and Complaint).  There are generally two types of Answers.  The first type is a direct response to the accusations.  In this first one you will lay out your defenses (see our section on defenses under Show Cause hearing), and the facts from your point of view.  The greatest advantage of filling out a direct answer is that it may prompt a negotiation with your landlord.  However sometimes saying less is more, so consider carefully what you want to say in your answer. (Click here for a blank answer sheet to guide you) We advise seeking legal assistance prior to filling out your answer.  (Click here for a link to the Housing Justice Project which can help low-income tenants with-in person legal representation when dealing with evictions.) 

The second form of an Answer is a Notice of Appearance or NOA.  A NOA is a simple statement to your landlord that you will attend the show cause hearing and speak before the court.  (To Learn More about Show-Cause hearings Click here) A Show Cause hearing is an opportunity for anyone facing eviction to speak to a judge and present their defenses in person.  A NOA additionally informs the court where they can send future filings and other notices to you.  (Click here to Learn More About Defenses in a show cause hearing) (Click here for a blank NOA form)

  1. How do I write an Answer or a Notice of Appearance (NOA)?

There are a few ingredients that need to be included in any answer or notice of appearance that you write.  It is recommended that you seek legal representation prior to sending an answer to your landlord.  (Click here for the Housing Justice Project, free legal representation for low-income tenants) IV Pro-note make multiple copies of your answer or notice of appearance so that you will retain a copy.  

(Click Here to view a blank Model Answer form) When you write an answer, you must include your name, signature, date, and address which your landlord or the court can send you future documents.  You must admit or deny each factual allegation in the complaint.  An example of this would be if the complaint alleges a failure to pay rent, you would either admit you failed to pay, or deny it claiming you did in fact pay.  Next when writing an answer you must set out any affirmative defenses you have.  You can find some common defenses by clicking on the link (Show Cause hearing Defenses).  You should now take your finished answer to the court for filing.  You can find the filing number located on the Unlawful Detainer Summons and Complaint. Occasionally there will be no filing number listed.  In these cases the landlord has not yet filed the S&C with the court, you can move on to sending the answer to the landlord.  It can be very beneficial to ask the clerk of the court to look over your answer.  If they have time, more often than not, the clerk can let you know if there are any glaring errors in your answer.  The clerk cannot provide you any legal advice.   Finally, you are able to send the answer to your landlord, or your landlord’s agent.  You landlord or their agents address will be listed on the Unlawful Detainer Summons and Complaint you received, there may additionally be a fax number, either is acceptable.

It is highly advised that you seek the opinion of an attorney prior to filing your answer.  (Click here for a link to some free legal clinics, Housing Justice project, and neighborhood legal.)

The Alternative to writing an answer is called a notice of appearance.  Instead of discussing the facts surrounding the Unlawful Detainer you can state that you will attend a show-cause hearing and present your defenses in person.  The advantage of doing a notice of appearance is that it will provide you with more time to seek legal aid.  The disadvantage of doing a notice of appearance is that it may decrease the time you have to negotiate with your landlord.   A NOA appearance contains a simple statement that you will attend the hearing listed in your Unlawful Detainer, that all paperwork can be sent to an address you specify, and your signature and date.  (Click here for a blank notice of appearance form) Once you have finished drafting your notice of appearance take it to the court for filing.  The court clerk maybe able to aid you in double checking the document, but they will not be able to provide you any legal advice.  Finally, you are able to send the answer to your landlord, or your landlord’s agent.  You landlord or their agents address will be listed on the Unlawful Detainer Summons and Complaint you received, there may additionally be a fax number, either is acceptable.

  1. What are some common defenses to help me deal with my unlawful detainer?

Listed below are a few common defenses that may help in your eviction case.  However, we suggest you seek legal counsel as they are not the limit of your options.  Free legal representation for low-income individuals can be found here. (Click here for link to the housing justice project, and neighborhood legal)

Defense of improper service and process is the defense that your landlord or their agent failed to properly notify you of the eviction process’s start and proceedings.  This defense comes in two parts.  First a failure to notify, a failure to notify is when the notice or the summons and complaint were not given to you properly.  (Click here for information on the Summons and Complaint) (Click here for information on eviction Notices) The Second part of the defense is that the notices you received were incomplete or contained errors.  (Click here for information on the Summons and Complaint) (Click here for information on eviction Notices) If either of these situations occur you may force the landlord to refile and resend you all the notices delaying the hearings and giving you more time to plan.  

Defense of Landlords action of Unlawful Detainer being retaliatory or discriminatory is a defense that can be raised.  If you have made good faith attempts to get a landlord to comply with codes, ordinances, lease agreements, or just general health and safety requests and the landlord has attempted to evict you either through direct eviction by filing an Unlawful Detainer action, raising your rent, or making your residence uninhabitable you can show this to the court and proceedings maybe halted.  Bringing in evidence of conversations with the landlord can aid in presenting this to the court.  

A Defense of having completely moved out already can cut back on costs that maybe levied against you at an eviction hearing and may change the type of hearing.  If you have completely moved out of your tenancy, you can inform the court that you are no longer in residence halting the eviction proceeding.  This may prevent your landlord from claiming attorney fees, and other legal costs.  

A Defense of failure to repair can be raised if your landlord failed to make repairs you reported in a timely fashion.   This defense can go toward the amount of rent owed.  You must have requested the that repairs be made and the time period for which repairs are required must have expired to claim this defense.  A deprivation of water or heat or imminently hazardous to life has a 24-hour period to repair.  72 hours is available for all other problems, but it can be extended to 10 days for minor issues.  In order to win on this defense, it is suggested you bring copies of exchanges between yourself and the landlord requesting the repairs, and pictures of the damaged areas.

A Defense of habitability can be raised if the premises have issues such as rodents, waste, or structural damage.    If the court accepts this defense, it can be used to offset the cost of rent.  It is recommended that you bring in pictures or other evidence of the issues. 

A Defense of having already paid rent can of course end the unlawful detainer action if the unlawful detainer action arises out of nonpayment of rent.  The best evidence for this is canceled checks, a log of a Venmo account, or receipts from your landlord.  Other evidence maybe accepted check with an attorney for an extensive list. 

This list of common defenses are only some of the total defenses available.  The value of speaking to an attorney cannot be understated.   (Click here for information on free legal representation for low income tenants.)

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