This article is the fourth in a six-part series that is designed to give you a detailed look at each segment of the unlawful detainer process. This particular article focuses on the process of actually filing the action.
1. An unlawful detainer action must be filed in the proper county. The proper county is the county in which the leased premises are located. Annexation can sometimes make this difficult. As a general rule, if you call your local Sheriff’s office, he/she will be able to give you the clearest answer on county lines. In our practice, we have found that the tax assessor’s records are not as current as the dispatcher. If you file in the wrong county deliberately (i.e., for your convenience) you risk having the pleading rendered void and losing your filing fee. Some counties will allow you to “transfer venue” if you file in the wrong county inadvertently.
2. An unlawful detainer action must be filed by the appropriate entity. If you own the property outright, in your own name, you can file an unlawful detainer action without benefit of a lawyer. Owning rental property without the protection of a corporate form is extremely risky and inadvisable – but it does let you file unlawful detainers “pro se”. Many counties will make you sign an “Affidavit of Ownership” under penalty of perjury. This affidavit requires that you affirm that: 1) you own the property; 2) you are not a corporation or a trust; and 3) you are not filing the action on behalf of the owner of the property. A power of attorney does not make you an attorney-in-fact and you cannot file an unlawful detainer action on behalf of someone else using a power of attorney. Enforcement of this rule is sporadic throughout the state. If the issue is raised, however, an inappropriately filed action is a void pleading. Getting an attorney after filing does not cure this fundamental defect. Our prices are kept purposefully low because of this rule.
3. An unlawful detainer action must be properly served. If you have claimed back rent and future rent (a “money claim”) the unlawful detainer action must be personally served. That means that the sheriff or process server must physically hand a copy of the unlawful detainer action to the tenant. If you claim possession of the leased premises only, the unlawful detainer action must simply be posted. Opting to use a process server rather than sheriff service may save time and be more cost-efficient in the long run. A process server must be specially designated by the court, over the age of 19, and not related to the case. Many judges also require that a posted summons and complaint also be sent regular U.S. Mail (“nail and mail”). The clock starts running on the unlawful detainer action once service is completed.
4. An unlawful detainer action must be filed against all the parties in interest. All of the leaseholders must be named in the action. You are not required to file against occupants, as their right to possession will terminate once the leaseholder’s rights to possession are terminated. If you are on-notice that the tenant has an unauthorized adult occupant, discuss the advantages and disadvantages of filing against that individual as well with your attorney.
Next month we will discuss the process of getting a default judgment, the court appearance if the tenant “answers” the action, and the issue of counterclaims.