What is an unlawful detainer lawsuit? How do you evict a family member or friend from your house?

Attorney Tom Olsen: People hear that term "unlawful detainer," and they're thinking, "What is that, Caleb?" What would be the typical situation where you're applying an unlawful detainer to?

Attorney Caleb Maggio: Well, there's two scenarios I see most often, Tom. One is significant others that are unmarried, living together, and the other is an adult child still living at the home with the parents. What an unlawful detainer is, is it's essentially an eviction where there's actually not a lease agreement in place.

Tom: So, the bottom line is that if you're living with a boyfriend, and the girlfriend-- Let's just say it's the boyfriend's home, and the girlfriend is living there, and everything is beautiful and wonderful, but someday things are not so great between them and the boyfriend wants the girlfriend out. Let's just say she has never paid rent, they just had a relationship together. He can't just change the locks on her. He has got to go through this unlawful detainer process.

Caleb: That's right, Tom. You have to file the unlawful detainer lawsuit.

Tom: What is the process for that? Timing-wise and what gets filed?

Caleb: Well, you don't need to give the person any notice. You can just go ahead and file the suit in an unlawful detainer situation. You get what's called summary procedure with that, just like you get with an eviction. Once they're served the lawsuit papers, they get five days to file a response, and you go from there. It can take in between two to four months to get this unlawful detainer done because you really don't get many defaults like you would in an eviction.

Tom: Caleb, when people evict a tenant that's paying rent, usually they're in a separate dwelling, a separate house or something, and the landlord does not have to see the tenant on a daily basis. Here we're talking about potentially you're living with somebody that you're in the process of evicting. I'm sure that must be quite uncomfortable for some clients.

Caleb: It's very uncomfortable, Tom. I've had my clients have to get domestic violence injunctions before, and that's something you can do if the situation escalates and there's some physical violence. You can go to the courthouse and get that injunction, and the police are going to show up and basically make somebody leave for at least temporary duration if that happens.

Tom: Let's do reverse roles here. Let's say the home belongs to the girl, and the boy has been living there. He does not own the home. He's living there with her, and one day they break up, and she says, "I want you out of here." If there is some kind of violence or threat by him, she can go get a restraining order, and that in and of itself will act in a sense like a very quick eviction, you might say.

Caleb: That's true, but you still have to follow through with the unlawful detainer because that doesn't necessarily terminate the residence as that person's primary residence. It just prevents the contact for the duration of the restraining order.