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 pos-
session 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 peace-
ful possession. In such instances, the offense
involved is the force itself and not the actual dis-
possession.
The second form of misdeed entails the initi-
ation 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 eject-
ment 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 seri-
ously disputed, a second and more comprehen-
sive 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 pro-
ceedings would not be justified under any other
circumstances. A minority of jurisdictions, how-
ever, 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 eject-
ment action. Since the BURDEN OF PROOF is
imposed upon the plaintiff who has been dis-
possessed in the ejectment suit, in regard to his
or her own paramount title, the issue of posses-
sion 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 eject-
ment 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 sum-
mary 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 sum-
mons 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 (Octo-
