An eviction lawsuit is not a modern invention. Its elements developed over the course of centuries, some surprisingly long time ago. This short article is an attempt to cover most noticeable cornerstones.
Trespass and break-in to someone’s property were recognized as punishable conduct in England as early as in 7th century, according to the Laws of Æthelberht: “If a person breaks first into someone’s dwelling, let him pay with 6 shillings.” Æthelberht’s code, ¶22, see also ¶¶ 28, 29 (602-603 A.D.)
Blackstone explains (Commentaries on the Laws of England, Volume III):
The law regulating recovery of real property developed it rules and elements over centuries, with many still in use today in one form or another. A requirement for notice and for providing an opportunity to cure a “feud,” was already present in the 9th century judgments (or “dooms”) of Alfred The Great: “we also command: that the man who knows his foe be homesitting fight not before he demand justice of him (requiring a 7-day notice).” The Laws of King Alfred,” §42. Fordham University translations of Old English Laws or Dooms.
Henry De Bracton wrote extensively on the practices of recovering possession. He dedicated a whole chapter "Of Assises Of Novel Disseysine" in his Book IV (Treatise I). From Bracton we know that eviction laws and procedures, such as an ejectment and “disseysine,” were known in some form in English law since at least 13th century. A right to recover possession through a “writ of entry,” or a lawsuit in an “assise,” was executed in many ways similar to the current procedure, including such features as a 5-day period, and a delay in eviction afforded to one in a military (or spiritual) service.
Have you ever wondered, why the most periods in unlawful detainer are counted in chunks of five days? It might be a pure coincidence, but Bracton offers an explanation. Per Bracton, the rule was that the possessor “must be ejected within five days, because the law of ancient time granted that the [evictor] should go one day to the East, the second day to the West, the third day to the South, and the fourth day to the North, to seek succour of his friends all the country round.” Henry de Bracton, “De Legibus Et Consuetudinibus Angliæ,” book 4, edited by Sir Travers Twiss, (1880) London, Longman & Co., Vol. III, Introduction, p. xxxvii. Bracton did not reveal what should evictor do on the fifth day.
If the 5-day period looks familiar, a tenant was then given only four days to respond and appear in the action, says Ranulf de Glanville, in his Treatise On The Laws And Customs Of The Kingdom Of England, Chapter XXIV, as translated by John Beames in 1812. An these four days were not even given in one piece or granted automatically—the tenant had a right to ask for a stay (or "essoin") of one day three consecutive times (Ch. XII).
Modern court forms ask to indicate, if the defendant is in military service. This is because today in US an eviction lawsuit is stayed if the household member is in military, pursuant to the federal Servicemembers Civil Relief Act, 50 U.S.C. App. § 501 et seq. This rule (of "essoin") was already enforced at least 900 years ago. Both Bracton (page link) and Glanville (Ch. XXVII) report on the practice of staying proceedings for a person in "King's service," to which there used to be added certain instances of traveling for long-distance pilgrimage (spiritual service). Bracton mentions it on the same page and Glanville in Ch. XXIX.
Our current rule is that the eviction trial is set within 20 days following a request to set the case for trial, following in turn defendant's appearance (CCP § 1170.5). This is not so drastically different from the early medieval England, where it was 15 days from tenant’s "attachment" to jurisdiction. (Glanville - Ch. XVI; Bracton - page 161).
Just as it is now, possession was obtained via writ, after judgment (Bracton, pages 15, 131, 139), and only after a complaint was made (Id., at 35). Among the causes, unjust detention was already recognized (Id., at 15).
A pre-litigation eviction notice was required as early as 800 years ago. At the time of Bracton treatise, a predecessor of the modern eviction notice was already in use, a “request,” required to be made and served before commencing an eviction lawsuit. A possessor was given a chance to cure (Bracton, at 81) or quit (Id. at 77), or face a lawsuit if not cured or quitted, after a request had been made “by a man personally with a living voice” (Id. at 87, 89, 109). It is the service of that request, informing the possessor that “the plaintiff is setting out on his way to sue out a writ against a disseysor,” was opening a door to filing a complaint, or, as Bracton puts it, tendering the tenement litigious. (Id. at 113, 615).
13th century procedures differed radically from today in one aspect—forcible entry. Back then, taking possession back by force was a preferred alternative to prosecuting it through the court. One was for immediate apprehension (the use of force), and another (litigation) was a backup plan, in case of a delay or if the attack failed. "[I]f a person has been unjustly diseased, having collected his forces he ought forthwith to expel the disseysor, if he can, but if not, he ought not to withdraw, but to knock continuously." If the claimant can't prevail due to the lack of force or "feebleness," the only recourse then left was through the writ and judgment. (Bracton, pages 23, 25, 33, 37). See also, Blackstone Commentaries, Book 3, Chapter X, Sec. II(1).
In the 19th century, and based on the later philosophical works (Kant, Hegel), Oliver Wendell Holmes explains the necessity of adjudicating possession by courts, because "[p]ossession is to be protected because a man by taking possession of an object has brought it within the sphere of his will. He has extended his personality into or over that object. As Hegel would have said, possession is the objective realization of free will. And by Kant's postulate, the will of any individual thus manifested is entitled to absolute respect from every other individual, and can only be overcome or set aside by the universal will, that is, by the state, acting through its organs, the courts." (The Common Law, 1881, p. 207).
So if the re-entry by force was a permitted, if not favored, manner of recovering possession in 13th century, it was later gradually outlawed by statutes, starting with Edward III's Statute of Northampton, 2 Ed. III (1328). Dickinson v. Maguire (1858) 9 Cal. 46, 50, dates the development of forcible entry and forcible detainer law to that act, although, on its face, this statute just forbids "going armed" in public places. Blackstone analogized this to a similar clause in Solon laws of ancient Greece (6 B.C.). (Blackstone, book IV, ch. 11, §9, Of Public Wrongs.)
Same Blackstone a paragraph above, more appropriately attributes the start of eviction statutes to "The Forcible Entry Act of 1381" of Richard II. 5 Ric. II. st.1. c.8. (Blackstone, book IV, ch. 11, §8, Of Public Wrongs.) This statute, with gradual changes, survived in force for 600 years, until 1977.
In California, the “Forcible Entry and Detainer Act” was enacted soon after the state’s formation. It was considered a derogation from the common law, a statutory invention, to be followed strictly. House v. Keiser (1857) 8 Cal. 499, 501. The Act originally did not require an eviction notice. “Our statute does not define the time or the necessity of such notice, but the common law is adopted, and includes the necessity.” Sullivan v. Cary (1860) 17 Cal. 80, 85. Only Act's 3rd revision (1862) enforced the requirement for a written demand. Uridias v. Morrell (1864) 25 Cal. 31, 35.
The city of San Francisco, however, did not wait for these developments. It was a busy eviction scene even then. Consider that in 1849, a traveller observed that the city looked like this: "“[W]e stopped and took a view of the city of tents. Not a brick house in the place, and but few wooden ones, and not a wharf or pier in the harbor. But for a few old adobe houses, it would have been easy to imagine that the whole city was pitched the evening before … and I felt oppressed with the fear that … those tents might all be struck some morning, and the city suddenly leave its moorings for parts unknown .” William Taylor. California Life Illustrated, p. 19 (Carlton & Porter ed. 1860). That was in 1849.
Just during the next year alone, dozens of eviction cases reached appellate level in this "city of tents," Including a case about an eviction from the Mission Dolores. [Warner v. Kelly (1850) 1 Cal. 92.] The second-ever recorded San Francisco case was about a tenant successfully challenging an eviction, including on the grounds of lack of notice. It was decided in March of 1850. [Ladd v. Stevenson & Parker (1850) 1 Cal. 18.]
The story keeps unfolding through present. For detailed coverage of requirements in drafting an eviction notice in San Francisco, see my book "Eviction Notice In San Francisco" on Amazon. Currently available is Volume I, covering general requirements and nine "for fault" evictions. The second volume is still in the works.
______________________
Trespass and break-in to someone’s property were recognized as punishable conduct in England as early as in 7th century, according to the Laws of Æthelberht: “If a person breaks first into someone’s dwelling, let him pay with 6 shillings.” Æthelberht’s code, ¶22, see also ¶¶ 28, 29 (602-603 A.D.)
Blackstone explains (Commentaries on the Laws of England, Volume III):
The law regulating recovery of real property developed it rules and elements over centuries, with many still in use today in one form or another. A requirement for notice and for providing an opportunity to cure a “feud,” was already present in the 9th century judgments (or “dooms”) of Alfred The Great: “we also command: that the man who knows his foe be homesitting fight not before he demand justice of him (requiring a 7-day notice).” The Laws of King Alfred,” §42. Fordham University translations of Old English Laws or Dooms.
Henry De Bracton wrote extensively on the practices of recovering possession. He dedicated a whole chapter "Of Assises Of Novel Disseysine" in his Book IV (Treatise I). From Bracton we know that eviction laws and procedures, such as an ejectment and “disseysine,” were known in some form in English law since at least 13th century. A right to recover possession through a “writ of entry,” or a lawsuit in an “assise,” was executed in many ways similar to the current procedure, including such features as a 5-day period, and a delay in eviction afforded to one in a military (or spiritual) service.
Have you ever wondered, why the most periods in unlawful detainer are counted in chunks of five days? It might be a pure coincidence, but Bracton offers an explanation. Per Bracton, the rule was that the possessor “must be ejected within five days, because the law of ancient time granted that the [evictor] should go one day to the East, the second day to the West, the third day to the South, and the fourth day to the North, to seek succour of his friends all the country round.” Henry de Bracton, “De Legibus Et Consuetudinibus Angliæ,” book 4, edited by Sir Travers Twiss, (1880) London, Longman & Co., Vol. III, Introduction, p. xxxvii. Bracton did not reveal what should evictor do on the fifth day.
If the 5-day period looks familiar, a tenant was then given only four days to respond and appear in the action, says Ranulf de Glanville, in his Treatise On The Laws And Customs Of The Kingdom Of England, Chapter XXIV, as translated by John Beames in 1812. An these four days were not even given in one piece or granted automatically—the tenant had a right to ask for a stay (or "essoin") of one day three consecutive times (Ch. XII).
Modern court forms ask to indicate, if the defendant is in military service. This is because today in US an eviction lawsuit is stayed if the household member is in military, pursuant to the federal Servicemembers Civil Relief Act, 50 U.S.C. App. § 501 et seq. This rule (of "essoin") was already enforced at least 900 years ago. Both Bracton (page link) and Glanville (Ch. XXVII) report on the practice of staying proceedings for a person in "King's service," to which there used to be added certain instances of traveling for long-distance pilgrimage (spiritual service). Bracton mentions it on the same page and Glanville in Ch. XXIX.
Our current rule is that the eviction trial is set within 20 days following a request to set the case for trial, following in turn defendant's appearance (CCP § 1170.5). This is not so drastically different from the early medieval England, where it was 15 days from tenant’s "attachment" to jurisdiction. (Glanville - Ch. XVI; Bracton - page 161).
Just as it is now, possession was obtained via writ, after judgment (Bracton, pages 15, 131, 139), and only after a complaint was made (Id., at 35). Among the causes, unjust detention was already recognized (Id., at 15).
A pre-litigation eviction notice was required as early as 800 years ago. At the time of Bracton treatise, a predecessor of the modern eviction notice was already in use, a “request,” required to be made and served before commencing an eviction lawsuit. A possessor was given a chance to cure (Bracton, at 81) or quit (Id. at 77), or face a lawsuit if not cured or quitted, after a request had been made “by a man personally with a living voice” (Id. at 87, 89, 109). It is the service of that request, informing the possessor that “the plaintiff is setting out on his way to sue out a writ against a disseysor,” was opening a door to filing a complaint, or, as Bracton puts it, tendering the tenement litigious. (Id. at 113, 615).
13th century procedures differed radically from today in one aspect—forcible entry. Back then, taking possession back by force was a preferred alternative to prosecuting it through the court. One was for immediate apprehension (the use of force), and another (litigation) was a backup plan, in case of a delay or if the attack failed. "[I]f a person has been unjustly diseased, having collected his forces he ought forthwith to expel the disseysor, if he can, but if not, he ought not to withdraw, but to knock continuously." If the claimant can't prevail due to the lack of force or "feebleness," the only recourse then left was through the writ and judgment. (Bracton, pages 23, 25, 33, 37). See also, Blackstone Commentaries, Book 3, Chapter X, Sec. II(1).
In the 19th century, and based on the later philosophical works (Kant, Hegel), Oliver Wendell Holmes explains the necessity of adjudicating possession by courts, because "[p]ossession is to be protected because a man by taking possession of an object has brought it within the sphere of his will. He has extended his personality into or over that object. As Hegel would have said, possession is the objective realization of free will. And by Kant's postulate, the will of any individual thus manifested is entitled to absolute respect from every other individual, and can only be overcome or set aside by the universal will, that is, by the state, acting through its organs, the courts." (The Common Law, 1881, p. 207).
So if the re-entry by force was a permitted, if not favored, manner of recovering possession in 13th century, it was later gradually outlawed by statutes, starting with Edward III's Statute of Northampton, 2 Ed. III (1328). Dickinson v. Maguire (1858) 9 Cal. 46, 50, dates the development of forcible entry and forcible detainer law to that act, although, on its face, this statute just forbids "going armed" in public places. Blackstone analogized this to a similar clause in Solon laws of ancient Greece (6 B.C.). (Blackstone, book IV, ch. 11, §9, Of Public Wrongs.)
Same Blackstone a paragraph above, more appropriately attributes the start of eviction statutes to "The Forcible Entry Act of 1381" of Richard II. 5 Ric. II. st.1. c.8. (Blackstone, book IV, ch. 11, §8, Of Public Wrongs.) This statute, with gradual changes, survived in force for 600 years, until 1977.
In California, the “Forcible Entry and Detainer Act” was enacted soon after the state’s formation. It was considered a derogation from the common law, a statutory invention, to be followed strictly. House v. Keiser (1857) 8 Cal. 499, 501. The Act originally did not require an eviction notice. “Our statute does not define the time or the necessity of such notice, but the common law is adopted, and includes the necessity.” Sullivan v. Cary (1860) 17 Cal. 80, 85. Only Act's 3rd revision (1862) enforced the requirement for a written demand. Uridias v. Morrell (1864) 25 Cal. 31, 35.
The city of San Francisco, however, did not wait for these developments. It was a busy eviction scene even then. Consider that in 1849, a traveller observed that the city looked like this: "“[W]e stopped and took a view of the city of tents. Not a brick house in the place, and but few wooden ones, and not a wharf or pier in the harbor. But for a few old adobe houses, it would have been easy to imagine that the whole city was pitched the evening before … and I felt oppressed with the fear that … those tents might all be struck some morning, and the city suddenly leave its moorings for parts unknown .” William Taylor. California Life Illustrated, p. 19 (Carlton & Porter ed. 1860). That was in 1849.
Just during the next year alone, dozens of eviction cases reached appellate level in this "city of tents," Including a case about an eviction from the Mission Dolores. [Warner v. Kelly (1850) 1 Cal. 92.] The second-ever recorded San Francisco case was about a tenant successfully challenging an eviction, including on the grounds of lack of notice. It was decided in March of 1850. [Ladd v. Stevenson & Parker (1850) 1 Cal. 18.]
The story keeps unfolding through present. For detailed coverage of requirements in drafting an eviction notice in San Francisco, see my book "Eviction Notice In San Francisco" on Amazon. Currently available is Volume I, covering general requirements and nine "for fault" evictions. The second volume is still in the works.
______________________
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