6 Steps to Unlawful Detainer – Step 2: The Complaint

IMG_7809The 6 Steps to Unlawful Detainer

Part 2 of a 6 part series on the Unlawful Detainer Action in Arkansas.

Okay, so you have given your tenants a Notice of Unlawful Detainer, but they still haven’t left.  Now what?

Step 2: The Complaint

What is a “complaint?”

A “Complaint in Unlawful Detainer” is a formal lawsuit against your tenant. Your attorney will draft the complaint and file it with your local court.  In Arkansas, these complaints are generally filed with the circuit court.  There is a filing fee of $165 – $185 (depending on the county) to file your complaint in an Arkansas circuit court.

Your complaint tells the judge why you should have possession of the property, and why your tenants should have to leave. You will need to include information about your property, the broken lease, how much the tenants owe you, and how you have been damaged by their actions (or inaction.) The “damage” that you describe here will not necessarily be the same as the “damages” that will be discussed in Step 6. Very specific information and wording needs to be included on your complaint, so check with your local attorney or landlord association for direction.

Do I need evidence?

You will most likely include evidence with your complaint. You will need to show the judge that what you allege in the complaint is true. Every case is different and will require different evidence. In some cases, you might have emails, photos, or bounced checks to corroborate the information in  your complaint.  In nearly every case, you will want to include a copy of the lease and a copy of the notice of unlawful detainer.

Often, a landlord or property owner will attach a notarized affidavit stating that the tenant has been asked to leave, owes a certain amount of rent, and the landlord is entitled to possession of the property.

 Sample Affidavit:

AFFIDAVIT IN UNLAWFUL DETAINER ACTIONHaving been duly sworn, the undersigned hereby states on oath:

1.     Plaintiff is lawfully entitled to possession of the real property described in the Complaint in Unlawful Detainer.

2.     Defendant unlawfully detains the real property described in the Complaint in Unlawful Detainer after lawful demand has been made upon them to surrender and deliver up the described real property.

3.     To the best of my knowledge and belief, the rental value of the property described in the Complaint in Unlawful Detainer, the possession of which is sought by the Plaintiff, is the sum of $600.00 per month.

______________________________

PROPERTY OWNER, Plaintiff

Anything else?

Yes. You may also need to have the following documents ready for the circuit clerk’s signature:

NOTICE OF INTENTION TO ISSUE WRIT OF POSSESSION: This document tells the tenant that a complaint has been filed against them, and they have five (5) days to either file an objection or vacate the property.

SUMMONS: This document also tells the tenant that a complaint has been filed against them, and how they need to answer the complaint.

Sample Notice of Intention to Issue Writ of Possession:

NOTICE OF INTENTION TO ISSUE WRIT OF POSSESSION

            You are hereby notified that the attached Complaint in the above-styled cause claims that you have been guilty of unlawful detainer and seeks to have a writ of possession directing the sheriff to deliver possession of the lands, tenements, or other possessions described in the Complaint delivered to the plaintiff. If, within five (5) days, excluding Sundays and legal holidays, from the date of service of this notice, you have not filed in the office of the Circuit Clerk of this county a written objection to the claims made against you by the plaintiff for possession of the property described in the Complaint, then a writ of possession shall forthwith issue from this office directed to the Sheriff of this county and ordering him to remove you from possession of the property described in the complaint and to place the plaintiff in possession thereof. If you should file a written objection to the complaint of the plaintiff and the allegations for immediate possession of the property described in the complaint within five (5) days, excluding Sundays and legal holidays, from the date of service of this notice, a hearing will be scheduled by the circuit court of this county to determine whether or not the writ of possession should issue as sought by the plaintiff.

DATED:________________________

BY:______________________________

CIRCUIT CLERK

  Sample Summons :

SUMMONS

THE STATE OF ARKANSAS TO DEFENDANT:

Name of Tenant

A lawsuit has been filed against you. The relief demanded is stated in the attached complaint. Within 30 days after service of this summons on you (not counting the day you received it) — or 60 days if you are incarcerated in any jail, penitentiary, or other correctional facility in Arkansas — you must file with the clerk of this court a written answer to the complaint or a motion under Rule 12 of the Arkansas Rules of Civil Procedure.

The answer or motion must also be served on the plaintiff or plaintiff’s attorney, whose name and address are:

If you fail to respond within the applicable time period, judgment by default may be entered against you for the relief demanded in the complaint.

 Clerk of Court

Give the Tenant Notice of the Complaint!

Notice is very important, and required by law. You must “serve” your tenant with a copy of the complaint, the notice of intention to issue writ of possession, the summons, plus any evidence or exhibits that you submitted to the court.

The documents must be served to the tenant in accordance with Rule 4 of the Arkansas Rules of Civil Procedure. There are several ways to accomplish this.  You may want to use a process server, send the notice via certified mail with restricted delivery and return receipt, or publish a warning order.  Arkansas law is very specific on what constitutes effective notice, so please read and understand the law or check with your attorney.

Proof of Service

After serving your tenant with the documents discussed above, you need to prove to the court that you have complied with the notice requirements.  To do this, you will file proof of service with the circuit court clerk.

Go back to… Step 1: The Notice

Currently on… Step 2: The Complaint

Next… Step 3: The Hearing

Skip ahead to… Step 4: The Writ of Possession.

Skip ahead to… Step 5: Execution of the Writ of Possession

Skip ahead to… Step 6: The Damages

If you need help:

If you need assistance with your Landlord-tenant legal matter in Arkansas, please contact Deborah at The Hardin Law Firm, PLC.  For our out-of-state clients, we are available via phone, fax, and email, to assist you with your real estate needs.

ATTORNEY: Learn more about Deborah L. Hardin.

SERVING: Cabot, Beebe, Ward, Searcy, Jacksonville, Lonoke County, White County, Faulkner County, and other central Arkansas areas. We also routinely serve out-of-state property owners, who require representation in Arkansas.

DISCLAIMER: The information contained in this web site is intended to convey general information. It should not be construed as legal advice or opinion. It is not an offer to represent you, nor is it intended to create an attorney-client relationship.

 Last updated: June 13, 2016 at 18:59 pm