TITLE 6 ACTIONS IN PARTICULAR CASES
CHAPTER 3 FORCIBLE ENTRY AND UNLAWFUL DETAINER
FORCIBLE ENTRY DEFINED.
Every person is guilty of a forcible entry who either:
1. By breaking open doors, windows or other parts of a
house, or by any kind of violence or circumstances of terror, enters
upon or into any real property; or,
2. Who, after entering peaceably upon real property,
turns out, by force, threats or menacing conduct, the party in
possession. Title 6, Chap. 3, §6-301
FORCIBLE DETAINER DEFINED.
Every person is guilty of a forcible detainer who either:
1. By force, or by menaces and threats of violence,
unlawfully holds and keeps possession of any real property, whether
the same was acquired peacefully or otherwise; or,
2. Who, in the nighttime, or during the absence of the
occupant of any lands, unlawfully enters upon real property, and
who, after demand made for the surrender thereof, for the period of
five (5) days, refuses to surrender the same to such former
occupant. The occupant of real property, within the meaning of this
subdivision, is one who, within five (5) days preceding such
unlawful entry, was in the peaceable and undisturbed possession of
such lands. Title 6, Chap. 3, §6-302
UNLAWFUL DETAINER DEFINED.
A tenant of real property, for a term less than life, is guilty
of an unlawful detainer:
1. When he continues in possession, in person or by
subtenant, of the property, or any part thereof, after the
expiration of the term for which it is let to him, without the
permission of his landlord, or the successor in estate of his
landlord, if any there be; but in case of a tenancy at will, it must
first be terminated by notice, as prescribed in the Civil Code.
2. Where he continues in possession, in person or by
subtenant, without permission of his landlord, or the successor in
estate of his landlord, if any there be, after default in the
payment of rent, pursuant to the lease or agreement under which the
property is held, and three (3) days' notice, in writing, requiring
its payment, stating the amount which is due, or possession of the
property, shall have been served upon him, and if there be a
subtenant in actual occupation of the premises, also upon such
subtenant. Such notice may be served at any time within one (1) year
after the rent becomes due. In all cases of tenancy upon
agricultural lands, where the tenant has held over and retained
possession for more than sixty (60) days after the expiration of his
term without any demand of possession or notice to quit by the
landlord, or the successor in estate of his landlord, if any there
be, he shall be deemed to be holding by permission of the landlord,
or the successor in estate of his landlord, if any there be, and
shall be entitled to hold under the terms of the lease for another
full year, and shall not be guilty of an unlawful detainer during
said year, and such holding over for the period aforesaid shall be
taken and construed as a consent on the part of a tenant to hold for
another year.
3. Where he continues in possession in person, or by
subtenants, after a neglect or failure to perform other conditions
or covenants of the lease or agreement under which the property is
held, including any covenant not to assign or sublet, than the one
for payment of rent, and three (3) days' notice, in writing,
requiring the performance of such conditions or covenants, or the
possession of the property, shall have been served upon him, and if
there be a subtenant in actual occupation of the premises, also upon
such subtenant. Within three (3) days after the service of the
notice, the tenant, or any subtenant in actual occupation of the
premises, or any mortgagee of the term, or other person interested
in its continuance, may perform the conditions or covenants of the
lease, or pay the stipulated rent, as the case may be, and thereby
save the lease from forfeiture: provided, if the covenants and
conditions of the lease, violated by the lessee, can not afterward
be performed, then no notice, as last prescribed herein, need be
given to said lessee or his subtenant demanding the performance of
the violated covenant or conditions of the lease. A tenant may take
proceedings similar to those prescribed in this chapter, to obtain
possession of premises let to an undertenant, in case of his
unlawful detention of the premises underlet to him.
4. A tenant or subtenant, assigning or subletting, or
committing waste upon, the demised premises contrary to the
covenants of his lease, thereby terminates the lease, and the
landlord, or his successor in estate, shall, upon service of three
(3) days' notice to quit upon the person or persons in possession,
be entitled to restitution of possession of such demised premises
under the provision of this chapter. Title 6, Chap. 3, §6-303
SERVICE OF NOTICE.
The notices required by the preceding section may be served
either:
1. By delivering a copy to the tenant personally; or,
2. If he be absent from his place of residence and from
his usual place of business, by leaving a copy with some person of
suitable age and discretion at either place, and sending a copy
through the mail addressed to the tenant at his place of residence;
or, if such place of residence and business can not be ascertained,
or a person of suitable age or discretion can not be found there,
then by affixing a copy in a conspicuous place on the property, and
also delivering a copy to a person there residing, if such person
can be found; and also sending a copy through the mail addressed to
the tenant at the place where the property is situated. Service upon
a subtenant may be made in the same manner. Title 6, Chap. 3, §6-304
JURISDICTION OF DISTRICT COURT.
The district court of the county in which the property, or some
part of it, is situated, has jurisdiction of proceedings under this
chapter. Title 6, Chap. 3, §6-305
PARTIES DEFENDANT.
No person other than the tenant of the premises, and subtenant,
if there be one, in the actual occupation of the premises when the
notice herein provided for was served, need be made parties
defendant in the proceeding, nor shall any proceeding abate nor the
plaintiff be nonsuited for the nonjoinder of any persons who might
have been made parties defendant; but when it appears that any of
the parties served with process or appearing in the proceeding are
guilty of the offense charged, judgment must be rendered against
them. Any person who shall become a subtenant of the premises or any
part thereof after the service of notice as provided in this chapter
shall be bound by the judgment. In case a married woman be a tenant
or a subtenant, her coverture
shall constitute no defense; but in case her husband be not
joined, or unless she be doing business as a sole trader, an
execution issued upon a personal judgment against her can only be
enforced against property on the premises at the commencement of the
action. Title 6, Chap. 3, §6-308
PARTIES GENERALLY. Except as provided in the preceding
section, the provisions of this code relating to parties to civil
actions are applicable to this proceeding. Title 6, Chap. 3, §6-309
ACTION FOR POSSESSION -- COMPLAINT -- SUMMONS.
In an action exclusively for possession of a tract of land of
five (5) acres or less for the nonpayment of rent, it is sufficient
to state in the complaint:
(1) A description of the premises with convenient
certainty;
(2) That the defendant is in possession of the
premises;
(3) That the defendant entered upon the premises, holds
the premises, and is in default of the payment of rent;
(4) That all notices required by law have been served
upon the defendant in the required manner; and
(5) That the plaintiff is entitled to the possession of
the premises. Upon filing the complaint, a summons must be issued,
served and returned as in other actions, provided, however, that at
the time of issuance of the summons, the court shall schedule a
trial within twelve (12) days from the filing of the complaint and
the service of the summons, complaint and trial setting on the
defendant shall be not less than five (5) days before the day of
trial appointed by the court. Title 6, Chap. 3, §6-310
CONTINUANCE.
In an action exclusively for possession of a tract of land of
five (5) acres or less for the nonpayment of rent, no continuance
shall be granted for a longer period than two (2) days unless the
defendant applying therefor gives an undertaking to the adverse
party with good and sufficient security, to be approved by the
court, conditioned for the payment of the rent that may accrue if
judgment is rendered against the defendant. Title 6, Chap. 3,
§6-311
JUDGMENT ON TRIAL BY COURT.
In an action exclusively for possession of a tract of land of
five (5) acres or less for the nonpayment of rent, the action shall
be tried by the court without a jury. If, after hearing the evidence
the court concludes that the complaint is not true, it shall enter
judgment against the plaintiff for costs and disbursements. If the
court finds the complaint true or if judgment is rendered by
default, it shall render a general judgment against the defendant
and in favor of the plaintiff, for restitution of the premises and
the costs and disbursements of the action. If the court finds the
complaint true in part, it shall render judgment for the restitution
of such part only, and the costs and disbursements shall be taxed as
the court deems just and equitable. No provision of this law shall
be construed to prevent the bringing of an action for damages.
Title 6, Chap. 3, §6-311A
FORM OF EXECUTION.
The execution, should judgment of restitution be rendered, may
be in the following form:
STATE OF IDAHO
ss.
County of ....
TO THE SHERIFF OR ANY CONSTABLE OF THE COUNTY:
WHEREAS, a certain action for the
possession of the following described premises, to-wit:
........................................................
........................................................
lately tried before the above entitled court, wherein .... was
plaintiff and .... was defendant, judgment was rendered on the ....
day of ...., A.D., .., that the plaintiff .... have restitution of
the premises, and also that he recover the costs and disbursements
in the sum of $ ....;
In the name of the State of Idaho, you are,
therefore, hereby commanded to cause the defendant and his goods and
chattels to be forthwith removed from the premises and the plaintiff
is to have restitution of the same. In the event the goods and
chattels are not promptly removed thereafter by the
defendant you are authorized and empowered to cause the same to
be removed to a safe place for storage. You are also commanded to
levy on the goods and chattels of the defendant, and pay the costs
and disbursements, aforesaid, and all accruing costs, and to make
legal service and due return of this writ.
WITNESS My hand and official seal (if issued
out of a court of record) this .... day of ...., A.D., ...
.... Clerk of the District Court Title 6, Chap. 3, §6-311C
ADDITIONAL UNDERTAKING ON APPEAL.
If judgment is rendered against the defendant
for the restitution of the real property described in the complaint,
or any part thereof, no appeal shall be taken by the defendant from
the judgment until he gives, in addition to the undertaking now
required by law upon appeal, an undertaking to the adverse party,
with two (2) sureties, who shall justify in like manner as bail upon
arrest, for the payment to the plaintiff, if the judgment is
affirmed on appeal, of the rental value of the real property of
which restitution is adjudged from the commencement of the action in
which the judgment was rendered until final judgment in the action.
Title 6, Chap. 3, §6-311D
ACTION FOR DAMAGES -- COMPLAINT -- SUMMONS.
In an action for damages incurred as a result
of failure to pay rent, the plaintiff in his complaint must set
forth the facts on which he seeks to recover. If the plaintiff
combines his action for damages with an action for possession, the
complaint shall also describe the premises with reasonable certainty
and may set forth therein any circumstances which may have
accompanied the alleged nonpayment of rent and claim damages
therefor; provided, however, that the early trial provision of
section 6-310, Idaho Code, shall not be applicable when an action
for damages is combined with an action for possession. In an action
for damages, a summons must be issued returnable as in other cases
upon filing the complaint. Title 6, Chap. 3, §6-311E
JUDGMENT BY DEFAULT.
If, at any time appointed, the defendant do
[does] not appear and defend, the court must enter his default and
render judgment in favor of the plaintiff as prayed for in the
complaint. Title 6, Chap. 3, §6-312
TRIAL BY JURY.
Whenever an issue of fact is presented by the
pleadings it must be tried by a jury, unless such jury be waived as
in other cases. The jury shall be formed in the same manner as other
trial juries in the court in which the action is pending.
Title 6, Chap. 3, §6-313
SUFFICIENCY OF EVIDENCE -- DEFENSES.
On the trial of any proceeding for any
forcible entry or forcible detainer, the plaintiff shall only be
required to show, in addition to the forcible entry or forcible
detainer complained of, that he was peaceably in the actual
possession at the time of the forcible entry, or was entitled to the
possession at the time of the forcible detainer. The defendant may
show in his defense that he or his ancestors, or those whose
interest in such premises he claims, have been in the quiet
possession thereof for the space of one whole year together next
before the commencement of the proceedings, and that his interest
therein is not then ended or determined; and such showing is a bar
to the proceedings. Title 6, Chap. 3, §6-314
AMENDMENT OF COMPLAINT.
When, upon the trial of any proceeding under
this chapter, it appears from the evidence that the defendant has
been guilty of either a forcible entry or a forcible or unlawful
detainer, and other than the offense charged in the complaint, the
judge must order that such complaint be forthwith amended to conform
to such proofs. Such amendment must be without any imposition of
terms. No continuance shall be permitted upon account of such
amendment unless the defendant, by affidavit filed, shows to the
satisfaction of the court good cause therefor. Title 6, Chap.
3, §6-315
JUDGMENT -- RESTITUTION.
If, upon the trial, the verdict of the jury,
or, if the case be tried without a jury, the finding of the court,
be in favor of the plaintiff and against the defendant, judgment
shall be entered for the restitution of the premises; and if the
proceeding be for an unlawful detainer after neglect or failure to
perform the conditions or covenants of the lease or agreement under
which the property is held, or after default in the payment of rent,
the judgment shall also declare the forfeiture of such lease or
agreement. The jury, or the court, if the proceeding be tried
without a jury, shall also assess the damages occasioned to the
plaintiff by any forcible entry, or by any forcible or unlawful
detainer, alleged in the complaint and proved on the trial, and find
the amount of any rent due, if the alleged unlawful detainer be
after default in the payment of rent, and the judgment shall be
rendered against the defendant guilty of the forcible entry, or
forcible or unlawful detainer, for the amount of the damages thus
assessed, and of the rent found due. When the proceeding is for an
unlawful detainer after default in payment of rent where the tract
of land is larger than five (5) acres, and the lease or agreement
under which the rent is payable has not by its terms expired,
execution upon the judgment shall not be issued until the expiration
of five (5) days after the entry of the judgment, within which time
the tenant, or any subtenant, or any mortgagee of the term, or other
party interested in its continuance, may pay into court, for the
landlord, the amount found due as rent, with interest thereon, and
the amount of the damages found by the jury or the court for the
unlawful detainer, and the costs of the proceeding, and thereupon
the judgment shall be satisfied and the tenant be restored to his
estate; but if payment as here provided be not made within the five
(5) days, the judgment may be enforced for its full amount, and for
the possession of the premises. In all other cases the judgment may
be enforced immediately. Title 6, Chap. 3, §6-316
TREBLE DAMAGES.
If a landlord or a tenant recovers damages
for a forcible or unlawful entry in or upon, or detention of, any
building or other tract of land, or for an action brought pursuant
to section 6-320, Idaho Code, judgment may be entered for three (3)
times the amount at which the actual damages are assessed.
Title 6, Chap. 3, §6-317
PLEADINGS MUST BE VERIFIED.
The complaint and answer must be verified. Title 6, Chap.
3, §6-318
APPEAL AS STAY.
An appeal taken by the defendant does not
stay proceedings upon the judgment unless the court so directs.
Title 6, Chap. 3, §6-319
ACTION FOR DAMAGES AND SPECIFIC PERFORMANCE BY TENANT.
(a) A tenant may file an action against a landlord for damages
and specific
performance for:
(1) Failure to provide reasonable waterproofing and
weather protection of the premises;
(2) Failure to maintain in good working order
electrical, plumbing, heating, ventilating, cooling, or sanitary
facilities supplied by the landlord;
(3) Maintaining the premises in a manner hazardous to
the health or safety of the tenant;
(4) Failure to return a security deposit as and when
required by law;
(5) Breach of any term or provision of the lease or
rental agreement materially affecting the health and safety of the
tenant, whether explicitly or implicitly a part thereof; and
(6) Failure to install approved smoke detectors in each
dwelling unit, to include mobile homes, under the landlord's
control. Upon commencement of a rental agreement, the landlord shall
verify that smoke detectors have been installed and are in good
working order in the dwelling unit. The tenant shall maintain the
smoke detectors in good working order during the tenant's rental
period. For purposes of this section, an approved smoke detector is
a battery-operated device that is capable of detecting visible or
invisible particles of combustion and that bears a label or other
identification issued by an approved testing agency having a service
for inspection of materials and workmanship at the factory during
fabrication and assembly. If the landlord or the landlord's assignee
fails to install working smoke detectors, the tenant may send
written notice by certified mail, return receipt requested, to the
landlord or the landlord's assignee that if working smoke detectors
are not installed within seventy-two (72) hours of receipt of the
letter, the tenant may install smoke detectors and deduct the cost
from the tenant's next month's rent. Smoke detectors purchased by
the tenant and deducted from rent become the property of the
landlord and shall not be removed from the premises. Upon filing the
complaint, a summons must be issued, served and returned as in other
actions, provided, however, that in an action exclusively for
specific performance, at the time of issuance of the summons, the
court shall schedule a trial within twelve (12) days from the filing
of the complaint, and the service of the summons, complaint and
trial setting on the defendant shall be not less than five (5) days
before the day of trial appointed by the court. If the plaintiff
brings an action for damages under this section, or combines his
action for damages with an action for specific performance, the
early trial provision of this section shall not be applicable, and a
summons must be issued returnable as in other cases upon filing the
complaint.
(b) In an action under this section, plaintiff, in his
complaint, must set forth the facts on which he seeks to recover,
describe the premises, and set forth any circumstances which may
have accompanied the failure or breach by the landlord.
(c) If, upon the trial, the verdict of the jury, or, if
the case be tried without a jury, the finding of the court, be in
favor of the plaintiff against the defendant, judgment shall be
entered for the amount of the damages assessed. Judgment may also be
entered requiring specific performance for any breach of agreement
showing by the evidence, and for costs and disbursements.
(d) Before a tenant shall have standing to file an
action under this section, he must give his landlord three (3) days
written notice, listing each failure or breach upon which his action
will be premised and written demand requiring performance or cure.
If, within three (3) days after service of the notice, any listed
failure or breach has not been performed or cured by the landlord,
the tenant may proceed to commence an action for damages and
specific performance.
(e) The provisions of this section shall not apply to
tracts of land of five (5) acres or more used for agricultural
purposes. Title 6, Chap. 3, §6-320
SECURITY DEPOSITS.
Amounts deposited by a tenant with a landlord
for any purpose other than the payment of rent shall be deemed
security deposits. Upon termination of a lease or rental agreement
and surrender of the premises by the tenant all amounts held by the
landlord as a security deposit shall be refunded to the tenant,
except amounts necessary to cover the contingencies specified in the
deposit arrangement. The landlord shall not retain any part of a
security deposit to cover normal wear and tear. "Normal wear
and tear" means that deterioration which occurs based upon the
use for which the rental unit is intended and without negligence,
carelessness, accident, or misuse or abuse of the premises or
contents by the tenant or members of his household, or their
invitees or guests.
Refunds shall be made within twenty-one (21)
days if no time is fixed by agreement, and in any event, within
thirty (30) days after surrender of the premises by the tenant. Any
refunds in an amount less than the full amount deposited by the
tenant shall be accompanied by a signed statement itemizing the
amounts lawfully retained by the landlord, the purpose for the
amounts retained, and a detailed list of expenditures made from the
deposit.
If security deposits have been made as to a
particular rental or lease property, and the property changes
ownership during a tenancy, the new owner shall be liable for refund
of the deposits. Title 6, Chap. 3, §6-321
RULES OF PRACTICE IN GENERAL.
The provisions of this code relative to civil
actions, appeals and new trials, so far as they are not inconsistent
with the provisions of this chapter, apply to the proceedings
mentioned in this chapter. Title 6, Chap. 3, §6-322
SERVICE OF NOTICE TO LANDLORD.
The notice required by section 6-320(d), Idaho Code, shall be
served either:
(1) By delivering a copy to the landlord or his agent
personally; or
(2) If the landlord or his agent is absent from his
usual place of business, by leaving a copy with an employee at the
usual place of business of the landlord or his agent; or
(3) By sending a copy of the notice to the landlord or
his agent by United States Postal Service certified mail, return
receipt requested. Title 6, Chap. 3, §6-323
ATTORNEY FEES.
In any action brought under the provisions of
this chapter, except in those cases where treble damages are
awarded, the prevailing party shall be entitled to an award of
attorney fees. For attorney fees to be awarded in cases requiring
the three (3) days' notice as set forth in section 6-303 2., Idaho
Code, it shall be necessary that the three (3) days' notice advise
the tenant that attorney fees shall be awarded to the prevailing
party. Title 6, Chap. 3, §6-324
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