WHAT IS A FIVE-DAY NOTICE OF UNLAWFUL DETAINER?
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This is a Notice used for a Tenant-at -Will, meaning a tenant without a lease. In the state of Nevada, a landlord is required to serve a tenant with a “Five Day Notice of Unlawful Detainer” to advise the tenant that their tenancy-at-will is ending. This notice instructs the tenant to leave the property. This notice is always preceded by a five-day notice that the tenancy at Will is ending. The unlawful detainer notice is the second noticed that a tenant will receive when the evection proceedings begin for a tenant at will.
What is a Tenant-at-Will?
Under the law, “tenancy-at-will” is the type of tenancy that exists when the tenant (known as a tenant- at-will) is residing on the premises with the consent of the landlord (either express or implied) for an indefinite period of time where no lease for that tenant is in place. The tenancy can be terminated by either party at it anytime. (See the case of Baker versus Simonds, 79 Nev. 434, 386 P 2d. 86, 1963 (also See 49 Am. Jur. 2d. Landlord Tenant section 118)
An example of a tenancy-at-will most commonly occurs where a landlord allows the tenant to stay on the property without a lease, the tenant is the guest on the property with the owner’s permission. The tenant is allowed to leave at any time and the owner can also have the guest leave at any time. Tenancy at will means that either the landlord or the tenant can terminate the tenancy at their discretion for any reason. No cause needs to be given to end the tenancy when the tenancy is at will. That is because there is no contract between the landlord and the tenant with which is commonly a lease agreement.
In an action for unlawful detainer or ejectment from the property, there is no landlord tenant relationship and no lease in place. In an unlawful detainer action, the person is being asked to leave the property because they have no lease agreement in place or because they are a squatter on the property. This often happens when premises are leased to a tenant and the tenant leaves and allows a family member or someone else to stay on the property to pay rent. That person has no legal rights and can be removed at any time at the landlord’s discretion.
When a five-day notice of unlawful detainer is served that gives the person residing on the premises notice that they must leave in five days. In Nevada, for a five-day notice (because the Courts are only open four days a week) it usually gives the tenant 8-10 days to vacate the premises. This is because the only days that are counted are days the Court is open. Therefore, the five days means five court days — meaning that Fridays are not counted, and neither are weekends or legal holiday. The notice runs from the day after it is served on the tenant to the end of the fifth legal day.
To illustrate the calculation of the time, is a Tenant is served a Five-Day Notice of Unlawful Detainer on a Monday,
Monday – the day of service is not counted.
Tuesday – is counted as day # 1.
Wednesday – is counted as day # 2.
Thursday – is counted as day # 3.
Friday – is counted as day # 4.
Saturday – weekend days are not counted.
Sunday – weekend days are not counted.
Next Monday – is counted as day # 5 and the Tenant has until the close of court to respond. .
Next Tuesday – is counted as day # 6 and that is the first day of expiration and Summary eviction can then be filed.
The following is the Nevada Form used for Unlawful Detainer. This form must be served by a licensed process server, attorney or constable. (Note: attorneys rarely engage in serving notices and generally retain a licensed process server).
FIVE-DAY NOTICE OF UNLAWFUL DETAINER
(NRS 40.254)
TO: FROM:
Tenant(s) Name(s) Landlord’s Name
Address Address
City, State, Zip Code City, State, Zip Code
DATE OF SERVICE: __________________ Telephone Number
YOU ARE GUILTY OF AN UNLAWFUL DETAINER.
YOU ARE REQUIRED TO QUIT THE PREMISES.
YOU MAY CONTEST THIS NOTICE by filing an Affidavit (or Answer) before the court’s close of business on the fifth (5th) full judicial day 1 following the Date of Service of this notice, with the Justice Court for the Township of (insert name of township where property is located), stating that you are not guilty of an unlawful detainer. The Justice Court is located at (insert Justice Court’s address):
__________________________
YOU CAN OBTAIN AN AFFIDAVIT/ANSWER FORM AND INFORMATION at the Civil Law Self-Help Center, located at the Regional Justice Center in downtown Las Vegas, or on its website, www.civillawselfhelpcenter.org.
If the court determines that you are guilty of an unlawful detainer, the court may issue a summary order for your removal or an order providing for your non-admittance, directing the sheriff or constable to post the order in a conspicuous place on the premises not later than 24 hours after the order is received by the sheriff or constable. The sheriff or constable shall then
remove you not earlier than 24 hours but not later than 36 hours after the posting of the order. You may request that the court stay the execution of the order for removal or non-admittance for a period of no more than 10 days by stating the reasons why a stay is warranted.
Pursuant to NRS 118A.390, you may seek relief if a landlord unlawfully removes you from the premises, or excludes you by blocking or attempting to block your entry upon the premises, or willfully interrupts or causes or permits the interruption of an
essential service required by the rental agreement or chapter 118A of the Nevada Revised Statutes.
DECLARATION OF SERVICE
On (insert date of service) _____________________________, I served this notice in the following manner (check only one):
By delivering a copy to the tenant(s) personally.
Because the tenant(s) was absent from tenant’s place of residence, by leaving a copy with (insert name or physical description
of person served) ____________________________________________, a person of suitable age and discretion, AND
mailing a copy to the tenant(s) at tenant’s place of residence.
Because neither tenant nor a person of suitable age or discretion could be found there, by posting a copy in a
conspicuous place on the property AND mailing a copy to the tenant(s) at the place where the property is situated.
I declare under penalty of perjury under the laws of the State of Nevada that the foregoing is true and correct.
_______________ _________________________ _______________________ ________
(Date) (Server’s Name) (Server’s Badge/License #) 2 (Server’s Signature)
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