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Ejectment of Unwanted Tenant

Last Modified: 07/28/2020

When there is no agreement to pay rent, an ejectment lawsuit may be filed by a property owner (or a person in lawful possession of the property) to recover possession of the property from an unwanted occupant. While ejectments are very similar to unlawful detainers, ejectments are filed if the unwanted occupant can claim he/she has legal or equitable title, interest, or a right to the property. 

Unlike unlawful detainers, ejectments are not summary proceedings, so the unwanted occupant has 20 days to respond to the complaint. Ejectments are commonly filed by a property owner who has purchased a home at a foreclosure sale, against the previous property owner who refuses to leave. Below is an example of how an ejectment may be used as a legal course of action.

Henry and Emily are siblings who live together in a house owned by Henry. Henry allowed Ann to move in with her children after a divorce. Now, Henry wants Emily to leave because they had a huge argument. Emily claims she has a right to possess the property based on an agreement she made with Henry to purchase the property. Since there is no landlord-tenant relationship between the siblings, and Emily is claiming a right to the home, an unlawful detainer action would likely fail in court. This leaves Henry with the option to file an ejectment lawsuit to remove Emily from the home.

WHAT ARE YOUR RIGHTS?

The Plaintiff is the person or party who files the Ejectment lawsuit to remove another person from the housing property.

You have the right to be represented by an attorney.

You have the right to ask the court to enter a Default and Default Final Judgment for Possession, if the Defendant does not timely file a response to your complaint.

You have the right to recover possessions, damages, and costs from the Defendant if you win the lawsuit.

The Defendant is the person who has a lawsuit served against them in court. In this situation, the Defendant is the person being removed from the housing property.

You have the right to be represented by an attorney.

You have the right to ask the court for additional time to file your response.

You have the right to ask the court for additional time to remove your personal property if you lose the lawsuit.

You have the right to recover costs from the Plaintiff if you win the lawsuit.

WHAT DO YOU NEED TO DO?

If you file an ejectment lawsuit, you are the Plaintiff.

The lawsuit must be filed in circuit court, in the county where the property is located. 

You must attach proof of ownership to the complaint, such as a deed. You must state how you acquired ownership of the property, which is also called the “chain of title”. 

You must prove you have a superior right to the property than the Defendant. 

You must pay for the filing fee, summons, and service of process, unless you are determined indigent by the clerk’s office.

You must use the sheriff or a certified process server to serve the Defendant with the summons and complaint.

If you have received an ejectment summons and complaint, you are the Defendant. The summons and complaint may be personally delivered to you by the sheriff or a certified process server. This is called “service of process.” 

You must write and file a response with the court within 20 days of receiving the summons and complaint. If you do not file a response with the court on time, the Plaintiff may automatically win the ejectment.

In your response, admit or deny each paragraph of the complaint and raise any defenses. 

Below is a list of common defenses that may apply to your situation.

The Plaintiff lacks standing. This means the Plaintiff does not have the right to file the complaint with the court. This defense is commonly used if the Plaintiff does not actually own the property, or does not have a right to possess the property.

A landlord-tenant relationship exists. This means you and the Plaintiff have an agreement to pay rent.

Unjust enrichment. This means you have made substantial repairs to the property, but the property owner refuses to reimburse you for those expenses.

Legal title. This means you have the deed to the property.

Equitable interest. This means you have made substantial improvements to the value of the property, contributed to the purchase price of the property, or made payments towards the mortgage.

You may attach supporting documentation to your response, such as receipts, cancelled checks for materials and/or labor, payment of taxes, and other expenses you paid to improve or repair the property.

WHAT TO CONSIDER BEFORE TAKING ACTION?

Before filing a lawsuit, tell the unwanted occupant he/she no longer has permission to live in the home. Written notice is not required, but is highly recommended.

Do not make substantial repairs to someone else’s property unless you have a written agreement with the property owner, or the person in lawful possession of the property. Also, make sure the person in lawful possession of the property has the right to enter into this type of agreement on behalf of the property owner.

Keep receipts and cancelled checks for any materials and/or labor you paid toward repairs or improvements.

If you take out a loan for the purchase price of the property or make payments towards the mortgage, keep all of the loan documents and proof of the mortgage payments.

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