FORCIBLE ENTRY AND DETAINER

A summary proceeding to recover possession of land that is instituted by one who has been wrongfully ousted from, or deprived of, possession.

Forcible entry and detainer, one aspect of which is known as unlawful detainer, alludes to two separate misdeeds and two divergent remedies of statutory origin.

The forcible intrusion into another person's peaceable possession constitutes one type of infraction. Even if it is unlawful, peaceable possession cannot be terminated by violence. In many jurisdictions, even the rightful owner is held liable for damages, which as provided by statutes are often multiple in nature, if he or she employs excessive force in ousting one in peaceful possession. In such instances, the offense involved is the force itself and not the actual dispossession.

The second form of misdeed entails the initiation of legal proceedings by the rightful owner against a squatter without title or a tenant who declines to depart. Force in such instances might be inconsequential, figurative, or nonexistent. Damages are avoidable, but the restoration of the lawful owner to possession of the property by eviction of the defendant is also within the purview of the remedy. This remedy, which awards both damages and possession, resembles ejectment, which also entails the recoupment of possession of property by the person entitled to it, but significant differences exist.

In addition to historical dissimilarities, the summary nature of the forcible entry and detainer action is unlike the nature of an ejectment action. The trial and eviction can be accomplished within a few days after service of process. Statutes frequently provide, however, that the decision in forcible entry or unlawful detainer is not binding as to title. If title is seriously disputed, a second and more comprehensive suit in ejectment or trespass is warranted.

The forcible entry or unlawful detainer action is restricted to cases in which the plaintiff's right to possession is unequivocal, since summary proceedings would not be justified under any other circumstances. A minority of jurisdictions, however, limit the action to the eviction of those who have actually entered by force.

A forcible entry suit, although burdensome in nature, functions not merely as a method of prompt relief but also affects a subsequent ejectment action. Since the burden of proof is imposed upon the plaintiff who has been dispossessed in the ejectment suit, in regard to his or her own paramount title, the issue of possession determined in the forcible entry suit affects the ultimate burden of proof. It would be inequitable to permit this to be manipulated by those who forcibly enter, or perhaps even by holdover tenants. The forcible entry action, in dispossessing the occupant where his or her title is patently invalid, influences the ejectment action by its principle that the plaintiff never prevails on the basis of the possessor's defective title, but must instead recover on the validity of his or her own title.

The supposition that unlawful detainer involves possession and not title, whereas ejectment entails title, is somewhat inaccurate. Both ejectment and unlawful detainer actions are possessory in nature, and title is nearly always the basis of possessory rights. The differences in the two actions reside in the summary character of forcible entry, the restricted class of person against whom it can be instituted, and its lack of res judicata effect on title issues.

These forcible entry and detainer, or summary eviction, statutes are primarily utilized by landlords attempting to regain possession of premises from recalcitrant tenants. The Supreme Court has upheld the validity of such statutes, regardless of the limited number of issues triable and the brief period between summons and trial.

further readings

Kirschbaum, Stephen. 1996. "Prosecuting and Defending Forcible Entry and Detainer Actions." The Journal of the Kansas Bar Association 65 (September): 20.

Sweetbaum, Alan, and E. James Wilder. 2000."Forcible Entry and Detainer: A Primer." Colorado Lawyer 29 (October): 89.