What is an "unlawful detainer" anyway?

Property managers often call and ask why we call it an “unlawful detainer” action when we file an “eviction”. This week, I’m going to explain the types of entries that can be made onto land. I’m also going to explain the reason why a landlord who accepts a partial payment from a tenant during an unlawful detainer proceeding always loses the case.

There are two types of entry onto land: lawful entry and unlawful entry. A tenant makes a “lawful” entry onto property when he takes possession pursuant to a lease agreement with the owner of the property. The tenant’s guests make “lawful” entries onto the property when they visit at the tenant’s request. An “unlawful” entry, in contrast, would be a thief, trespasser, or squatter, who enters the property without the knowledge or consent of the owner. An “unlawful detainer action” – which most of you are familiar with – is a court action which deals with a person whose original lawful entry onto / legal possession of the property is now unlawful. This contrasts to a trespass action or a forcible entry and seizure, where there was no original lawful entry/ legal possession.

Therefore, in order to maintain an “unlawful detainer action” a landlord must first render the tenant’s occupancy of the property “unlawful”. A tenant’s “lawful” entry becomes “unlawful” after the tenant fails to cure his or her material default under a lease agreement.

Alabama law allows a landlord to terminate a lease agreement with a 7 Day Cure notice. Some of you call this a “Notice of Nonpayment” while others call it a “Notice of Rental Agreement Noncompliance” – it means, in essence, that a tenant has breached a covenant of the lease (namely, their obligation to pay rent on time and in full) and that if they fail to fix or “cure” their default within seven days the lease is null and void. After the expiration of the 7 Day Cure period, the tenant’s “lawful” entry becomes an “unlawful” holding of the property and you can maintain an action in District Court. Keep in mind, though, that if you accept a partial payment from a tenant, your 7 Day Cure notice is no longer valid because you have failed to render their entry “unlawful”. This is one of the simplest ways a Landlord can lose an unlawful detainer action – that is going to be the subject of my next post.

3 Responses to What is an "unlawful detainer" anyway?

  1. Jim says:

    What differences are there with a commercial lease vs. a residential lease for Unlawful detainer? and how much leeway do judges have in these type of cases?
    I have a building leased to a volunteer fire dept that is constantly violating the lease and refuses to pay the legal bills under the attorney fee section of the lease- even after the Civil Appeals court has already ruled.
    They seem to keep getting “favors”.

  2. A commercial lease is governed by a different statute – not the uniform residential landlord-tenant act. Generally, commercial tenants have less protections because courts view both parties as “sophisticated”.

  3. guest254 says:

    WHAT IF YOU HAVE PAID YOUR RENT IN FULL AND YOU STILL RECEIVE THE UNLAWFUL DETAINER NOTICE/LETTER FROM YOUR LANDLORD? what should be the next course of action if the property managers fail to issue a formal apology.

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