What is a forcible detainer?

Sometimes a landlord will file and serve her tenant a complaint for forcible detainer instead of an unlawful detainer. What is the difference? Forcible detainers are usually filed and served when the landlord is alleging that the tenant has stayed in her apartment without her permission. For example, if the tenant gives notice to the landlord that she is moving out at the end of the month, and then does not move, the landlord would serve a complaint for forcible detainer. Before filing, however, the landlord must first serve the tenant with a demand that the tenant surrender the apartment within five days from the date of service.

In order to properly plead forcible detainer, the landlord must allege: that the landlord was in actual possession of the apartment at the time of entry; that a forcible entry has occurred (i.e., the landlord did not consent to the tenant’s possession). The complaint must also state that the landlord was deprived of possession of the apartment; the landlord is seeking to recover possession; the landlord sent the tenant a demand for possession; the tenant refused to vacate and the landlord is entitled to possession.

Like a proceeding for unlawful detainer, forcible detainer is a summary proceeding and the tenant must file a responsive pleading within five days after being served. If the tenant files an answer, she has very limited defenses in a forcible detainer action. For example, the tenant cannot claim as a defense that the landlord does not have title and right to possession of the apartment.

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Mary Catherine Wiederhold

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