Unlawful Detainer Overview

What is an Unlawful Detainer?

An unlawful detainer occurs when a person remains in possession of property after the expiration of time a person has rented or leased that property. Chan v. Antepenko, 203 Cal. App. 3d Supp. 21 (1988). This is a process a landlord takes in order to repossess his/her property from his/her tenant.

Process of an Unlawful Detainer

Three-day notice before filing unlawful detainer

Under Code Civ. Proc., § 1161, there needs to be a three-day notice period to pay rent or quit served by a landlord on a tenant. The three-day notice is required before filing of a complaint for unlawful detainer. The purpose of this notice is to give the tenant an opportunity to pay the rent and retain possession of the property. If payment is made by the tenant within the three-day notice time period, the tenant remains in possession of the property and the tenant suffers no default on the property.

Tenant vacates property prior to unlawful detainer complaint filed

If a tenant vacates and surrenders the property prior to the unlawful detainer complaint being filed, then there is no action for unlawful detainer even if the tenant did not surrender the property during the three-day notice period. Briggs v. Electronic Memories & Magnetics Corp., 53 Cal. App. 3d 900 (1975). The purpose of an unlawful detainer is to recover possession of property for the landlord. Id.


No palace casino online payment made during three-day notice

The tenant is required to pay rent or quit once a landlord has served a three-day notice on the tenant and the tenant has not paid rent owed. An answer states possible legal defenses and/or reasons why the tenant did not pay for rent. Even if the tenant has no reasonable excuse, the tenant generally still needs answer to the landlord’s complaint. Possible legal defenses include but are not limited to a breach of the warranty of habitability or an absence of the landlord’s three-day notice to the tenant. For example, if the property has a termite issue and the tenant notified the landlord of this issue, if the tenant suffers from safety issues, then the court may find that this is a reasonable excuse as to why the tenant did not pay rent. As stated above, if the tenant did not receive a three-day notice to pay rent or quit from the landlord, the tenant did not receive notice that he/she must pay rent in order to remain in the property owned by the landlord.


This blog was written by legal intern and law student Julie Houth. It should not be relied upon as legal advice. The law is constantly changing and this blog is meant to be only informative. If you have any comments or questions about the law  please contact Seneca law group today to discuss your rights.

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