Unlawful Detainer (eviction) – Part 2 – Summons, Complaint, and Answer

Once a landlord knows that his tenant is in unlawful detainer he may start the lawsuit.  The lawsuit begins by serving at least two documents on the tenant, the summons and the complaint.

The summons is a formal document that provides notice to the tenant that his landlord is bringing a lawsuit to evict him, provides a deadline for him to respond by, and explains how the tenant may serve his answer.  The form of the summons for a residential tenant is defined by statute.  A landlord should be careful that he uses a summons that complies with the current statute because otherwise his case could be dismissed.

The complaint is a formal document wherein the landlord alleges the facts that make the tenant in unlawful detainer and asks the court for relief.  In simpler terms, the complaint tells the court what relief the landlord is asking for and why, as a matter of law, the court should grant the relief.

Both the summons and complaint must be served on the tenant in a way that is more strict than the service of the notice.  The summons and complaint must be served either directly on the tenant personally or by leaving copies at his or her usual abode with a co-resident of suitable age and discretion.

Once the tenant is served the ball is in his court.  If the tenant does not answer in time, then the landlord may get a judgment and writ by default.  Default means that the court gives the plaintiff everything he is asking for because nobody has appeared to oppose.  If the tenant does answer in time then the matter must go to a show cause hearing (if it’s a residential lease) and possibly to trial.

The importance of the beginning of the lawsuit to the tenant is hopefully obvious at this point.  If a tenant receives a summons and complaint she must answer in time by writing or risk being evicted by default.  Answering the complaint opens the door for either prevailing on the case or negotiating a resolution.  If the tenant defaults then the Writ of Restitution will be issued against her and the sheriff may come and evict her at the earliest opportunity allowed by law.

Furthermore, if the summons and complaint are unfiled then the tenant has a golden opportunity to avoid having the case made public.  Many tenants are rightfully concerned about the impact that an eviction will have on their ability to secure good rentals in the future.  A tenant whose main concern is their rental history should act quickly and intelligently to an unfiled summons and complaint to avoid their landlord filing the action.

For the landlord it is essential that the correct summons is used, the complaint is drafted correctly, and that the documents are properly served.  If any one of these elements are wrong then the landlord’s case may be in severe jeopardy.  Self represented landlords routinely make critical mistakes by this point in the action.  These mistakes delay how soon they are able to recover their property and may subject them to attorney’s fees.

A point of tactics

Now, there are several tactical decisions a landlord may make when starting an unlawful detainer action, but we’ll only cover a very basic one here.  The summons and complaint may be served either unfiled or filed with a show cause hearing set.  Each option has its advantages and disadvantages.

The advantage of an unfiled summons and complaint is primarily a potential cost savings.  There are no court costs when serving an unfiled summons and complaint.  If the tenant does not answer in time and a default judgment is obtained then the court filing fee is less than if there is a show cause hearing.  However, if the tenant does answer and a show causing hearing is set, then there is no cost savings because the filing fee is the same as if the show cause hearing was set when the case was filed.  Another slight advantage is that if the tenant understands that the action is unfiled (and therefore not a matter of public record yet) they may be willing to move out quickly to avoid the case being filed, but this generally requires a saavy tenant.

The advantage of filing the action and having a show cause hearing set from the beginning is potentially completing the matter more quickly.  If unfiled papers are served and answered then a show cause hearing must be set to move the case forward.  There is a waiting period between when the show cause hearing is set (and the tenant is served with the order to show cause) and when the hearing can take place.  This show cause waiting period can be the same time as the answer period if the order to show cause is served at the same time as the summons and complaint.  By this method, the overall length of the action can be shortened by a couple weeks.