Special Announcement

Posted Friday, October 2, 2020

Landlords: Tenant Can Choose to Respond to the Complaint (Step 5 of 7)

Eviction for Landlords: Step 5Step 1 - Give Notice Step 2 - Fill Out Forms Step 3 - File In Court Step 4 - Serve Tenant Step 5 - Tenant Responds Step 6 - Trial Step 7 - After Judgment

Once the tenant is properly served with the Summons and the Complaint, the tenant has time to respond. The tenant can choose not to respond at all, to respond with an Answer, or respond by filing in court some other legally valid paper. Whether the tenant responds and how will then determine what your next step is.

Wait the Required Time for the Tenant to Respond

How long the tenant has to respond depends on how the tenant was served.

Personal Service
If the tenant was served in person, the tenant has 5 days to respond. Do not count Saturdays, Sundays, or court holidays.

Substituted Service or Posting and Mailing
If the tenant was served by substituted service or "post and mail," the tenant has 15 days after the date the server mailed the court papers to file a response. The date of mailing is the postmark date. For the first 10 of the 15 days, count regular calendar days (every day, including weekends and holidays). The 10th day is the day "service" is considered complete because you served the tenant by substituted service and not in person. Then you count 5 court days, which is the time the tenant generally has to respond to the Complaint. For these 5 court days do not count Saturdays, Sundays, or court holidays.

More Than 1 Tenant
If there is more than 1 defendant (tenant), there could be different deadlines if they were served in different ways or on different days. You have to keep track of the deadline for each defendant.

The tenant may or may not file a response, which will then determine what your next step is.

What to Do After the Tenant Responds or the Time to Respond Passes

If the tenant does not file a response within 5 court days, you may be able to evict him or her without the tenant having a say in the case. This can affect the tenant’s ability to rent in the future because he or she will have an eviction on his or her record. And if you say the tenant owes money for back rent and the tenant does not answer, you may be able to take that money from the tenant’s paycheck or bank account. An eviction can also affect the tenant’s credit record.

  1. First, you must make sure that the tenant's time to respond is over.
  2. Then, you must ask the court to make an order in your favor. This is called a "default judgment," and it means the tenant will not be able to fight the case in court. To do this, you must fill out and file these forms:

More Than 1 Tenant
If there is more than 1 defendant in the case, you can ask for a default judgment against the ones that have not responded.

Clerk's Judgment for Possession
If you want to get an order giving you possession of the property right away, you can first just ask for a Clerk's Judgment for Possession. You can do that on Form UD-110 or ask the court if they have a simpler form for this.

You will not be able to include back rent in this Clerk's Judgment, but if the clerk confirms that you have done everything correctly, he or she can process it and give it to you very quickly. With the Judgment for Possession, you can get the Writ of Execution, which is the document that you give to the sheriff to evict the tenant.

You can later ask for a Judgment that includes back rent and court costs.

Alert! If you do not ask for a "default judgment" as soon as the tenant's time to answer is up, the tenant will have more time to answer. The tenant will be able to file a response as long as you do not file the Request for Entry of Default.

If the tenant has already moved out before the case is over, read more.

If the tenant files a response, he or she needs to send you a copy of the response. The tenant will send it to the address you put on the Complaint. You can also go to the courthouse and look up the case if you have not received anything from the tenant and want to make sure he or she did not respond.

There are different ways a tenant may respond. Most tenants respond by filing an Answer - Unlawful Detainer (Form UD-105 | video instructions video icon).

But if the tenant believes your Complaint or service of your Complaint is defective, he or she may file a motion such as a motion to quash (void) service or a demurrer challenging the service or the Complaint itself.

Motion to Quash Service
A motion to quash service is filed when the tenant says that the landlord did not serve the Summons and Complaint properly. If the tenant wins, the landlord has to re-serve the Summons and Complaint. If the landlord wins, the tenant will have to answer the Complaint promptly.

A demurrer is filed when the tenant says that the Complaint fails to include all the facts or elements that the law requires to justify an eviction. Demurrers can delay the case by a few weeks, and if the tenant wins, the landlord may have to start the case all over and may even have to give the tenant a new notice. So it is very important for the landlord to fill out the eviction notice and the Complaint correctly.

If the tenant files either a motion to quash or a demurrer, you should talk to a lawyer because there are steps you need to take to avoid delays, fix any problems, and continue with the case.

If the tenant files and serves the landlord with an answer, you must file a Request to Set Case for Trial-Unlawful Detainer (Form UD-150), at the clerk's office if you want the case to move forward.

You also have to serve the tenant by mail with a copy of the Request and have the server fill out the Proof of Service on the back of the Request.

If the tenant has already moved out before the case is over, read more.