Nevada Landlord Tenant Law - Click here to return to US Landlord
State of Nevada Eviction Law
118A.060 "Cause" defined. A tenancy is terminated with
"cause"
for:
1. Nonpayment of rent.
2. Nonpayment of utility charges if the landlord
customarily pays such charges and submits a separate bill to the
tenant.
3. Failure of the tenant to comply with:
(a) Basic obligations imposed on the tenant by this
chapter;
(b) Valid rules or regulations established pursuant to this chapter;
or
(c) Valid provisions of the rental agreement.
4. Condemnation of the dwelling unit.
(Added to NRS by 1977, 1331)
118A.420 Failure of tenant to comply with rental
agreement or perform basic obligations: Damages; injunctive relief.
Except as otherwise provided in this chapter, the landlord
may recover damages and obtain injunctive relief for failure of the
tenant to comply with the rental agreement or perform his
basic obligations under this chapter.
(Added to NRS by 1977, 1341)
118A.430 Failure of tenant to comply with rental
agreement or perform basic obligations: Termination of rental
agreement.
1. Except as otherwise provided in this chapter, if the
tenant fails to comply with the rental agreement or fails to
perform his basic obligations under this chapter, the
landlord may deliver a written notice to the tenant
specifying the acts and omissions constituting the breach and that
the rental agreement will terminate as provided in this section. If the
breach is remediable and the tenant does not adequately
remedy the breach or use his best efforts
to remedy the breach within 5 days after receipt of the notice, or if
the breach cannot be remedied, the landlord may terminate
the rental agreement.
2. If the tenant is not reasonably able to remedy the
breach, the tenant may avoid termination of the rental
agreement by authorizing the landlord to enter and remedy
the breach and by paying any reasonable expenses or damages
resulting from the breach or the remedy thereof.
(Added to NRS by 1977, 1341)
118A.440 Failure of tenant to perform basic obligations:
Remedial work by landlord may be charged to
tenant. If the tenant's failure to perform
basic obligations under this chapter can be remedied by repair,
replacement of a damaged item or cleaning, and the tenant
fails to use his best efforts to comply within 14 days after written
notice by the landlord specifying the breach and requesting
that the tenant remedy it within that period of time or more
promptly if conditions require in case of emergency, the
landlord may enter the dwelling unit and cause the work to
be done in a workmanlike manner and submit the itemized bill for
the actual and reasonable cost, or the fair and reasonable value of
the work. The itemized bill shall be paid as rent on the next date
periodic rent is due, or if the rental agreement has terminated, may
be submitted to the tenant for immediate payment or
deducted from the security.
(Added to NRS by 1977, 1341)
118A.480 Landlord's recovery of possession of dwelling
unit. The landlord shall not recover or take possession of
the dwelling unit by action or otherwise, including willful
diminution or interruption or causing or permitting the diminution
or interruption of any essential service required by the rental
agreement or this chapter, except:
1. By an action for possession or other civil action or summary
proceeding in which the issue of
right of possession is determined;
2. When the tenant has surrendered possession of the
dwelling unit to the landlord; or
3. When the tenant has abandoned the dwelling unit as
provided in NRS 118A.450.
(Added to NRS by 1977, 1342)
118A.490 Actions based upon nonpayment of rent: Counterclaim
by tenant; deposit of rent with court; judgment for
eviction.
1. In an action for possession based upon nonpayment of rent or
in an action for rent where the
tenant is in possession, the tenant may defend and
counterclaim for any amount which he may recover under the rental
agreement, this chapter, or other applicable law. If it appears that
there is money which may be due to the landlord by the
tenant after
the day of the hearing or if a judgment is delayed for any reason,
the court shall require a tenant who remains in possession
of the premises to deposit with the court a just and reasonable
amount to satisfy the obligation, but not more than 1 day's rent for
each
day until the new hearing date. The court shall order the
tenant to pay the landlord any rent which is not in
dispute and shall determine the amount due to each
party. Upon the application of either party, the court, after notice
and opportunity for a hearing, may for good cause release to either
party all or any portion of the rent paid into court by the
tenant. The court shall award the prevailing party the
amount owed and shall give judgment for any other amount which
is due.
2. In any action for rent where the tenant is not in
possession, the tenant may counterclaim as provided in
subsection 1 but is not required to pay any rent into court.
3. When the court renders a decision on the landlord's
claim for possession, it shall distribute any rent paid into court
under subsection 1 upon a determination of the amount due to each
party.
4. If a tenant fails to deposit with the court within 24
hours after the original hearing the entire amount required pursuant
to subsection 1, the tenant relinquishes his right to a
hearing and the court shall at that time grant a judgment for
eviction without further hearing.
(Added to NRS by 1977, 1342; A 1985, 1419)
SUMMARY PROCEEDINGS FOR OBTAINING POSSES-
SION OF REAL PROPERTY, RECREATIONAL
VEHICLE OR MOBILE HOME
40.215 Definitions.
40.220 Entry to be made only when legal and in peaceable manner.
40.230 Forcible entry defined.
40.240 Forcible detainer defined.
40.250 Unlawful detainer: Possession after expiration of term.
40.251 Unlawful detainer: Possession of property leased for
indefinite time after notice to quit.
40.2512 Unlawful detainer: Possession after default in payment of
rent.
40.2514 Unlawful detainer: Assignment or subletting contrary to
lease; waste; unlawful business; nuisance; violations of controlled
substances laws.
40.2516 Unlawful detainer: Possession after failure to perform
conditions of lease; saving lease from forfeiture.
40.252 Unlawful detainer: Contractual provisions void if contrary
to specified periods of notice; notice to quit or surrender by
colessor is valid unless showing other colessors did not authorize
notice.
40.253 Unlawful detainer: Supplemental remedy of summary
eviction and exclusion of tenant for default in payment of
rent.
40.254 Unlawful detainer: Supplemental remedy of summary
eviction and exclusion of tenant from certain types of
property.
40.255 Removal of person holding over after 3-day notice to quit;
circumstances authorizing removal.
40.260 Tenant of agricultural lands may hold over if not
notified.
40.270 Tenant has similar remedies against subtenant.
40.280 Service of notices to quit; proof required before issuance of
order to remove.
40.290 Parties defendant; persons bound by judgment.
40.300 Contents of complaint; issuance and service of summons;
temporary writ of restitution; notice, hearing and bond.
40.310 Issue of fact to be tried by jury if proper demand made.
40.320 Proof required of plaintiff and defendant on trial.
40.330 Amendment of complaint to conform to proof;
continuance.
40.340 Adjournments.
40.350 Trial not to be adjourned when complainant admits
evidence in affidavit would be given.
40.360 Judgment; damages; execution and enforcement.
40.370 Verification of complaint and answer.
40.380 Provisions governing appeals.
40.390 Appellate court not to dismiss or quash proceedings for
want of form.
40.400 Rules of practice.
40.420 Form of writ of restitution; execution.
40.425 Notice of execution on writ of restitution.
40.215 Definitions. As used in NRS 40.220 to 40.420, inclusive,
unless the context
requires otherwise:
1. "Mobile home" means every vehicle, including equipment,
which is constructed, reconstructed or added to in such a way as to
have an enclosed room or addition occupied by one or more
persons as a dwelling or sleeping place and which has no
foundation other
than wheels, jacks, skirting or other temporary support.
2. "Mobile home lot" means a portion of land within a mobile
home park which is rented or held out for rent to accommodate a
mobile home.
3. "Mobile home park" or "park" means an area or tract of
land
where two or more mobile homes or mobile home lots are rented or
held out for rent. "Mobile home park" or "park" does not
include
those areas or tracts of land, whether within or outside of a park,
where the lots are held out for rent on a nightly basis.
4. "Premises" includes a mobile home.
5. "Recreational vehicle" means a vehicular structure primarily
designed as temporary living
quarters for travel, recreational or camping use, which may be
self-propelled or mounted upon or drawn by a motor vehicle.
6. "Recreational vehicle lot" means a portion of land within a
recreational vehicle park, or a portion of land so designated within
a mobile home park, which is rented or held out for rent to
accommodate a recreational vehicle overnight or for less than 3
months.
7. "Recreational vehicle park" means an area or tract of land
where lots are rented or held out for rent to accommodate a
recreational vehicle overnight
or for less than 3 months.
(Added to NRS by 1969, 264; A 1979, 1877; 1981, 2037; 1989,
1081)
40.220 Entry to be made only when legal and in peaceable
manner. No entry shall be made
into any lands, tenements or other possessions but in cases where
entry is given by law; and in such cases, only in a peaceable manner,
not with strong hand nor with multitude of people.
[1911 CPA º 643; RL º 5585; NCL º 9132]
REVISER'S NOTE. "Case" was changed to "cases" to effect
agreement in the section.
NEVADA CASES.
Summary proceedings in general open to objections.
Summary proceedings are in general open to objections for
technical omissions and imperfections or defects in return. Paul v.
Armstrong, 1 Nev. 82 (1865)
Statute must be strictly pursued. Whenever statutory authority
exists by which man may be deprived of his property or estate,
statute must be strictly pursued. Paul v. Armstrong, 1 Nev. 82
(1865), cited, Gasser v. Jet Craft, Ltd., 87 Nev. 376, at 379, 487
P.2d 346 (1971)
Object not to try titles but preserve peace and prevent violence.
Object of B ºº 41 and 42 (cf. NRS 40.220 et seq.), relating to
actions for forcible entry and detainer, is not to try titles, but to
preserve peace and prevent violence. Lachman v. Barnett, 18 Nev.
269, 3 Pac. 38 (1884)
Complaint which did not allege fraud insufficient to warrant arrest
of defendant. Under secs. 1, 2 and 9, ch. 46, Stats. 1865 (cf. NRS
40.220-40.252, 40.254 and 40.300), relating to forcible entry and
unlawful detainer, complaint which did not allege fraud on part of
defendant, either in making such forcible entry or in holding such
possession by force, was radically defective and wholly insufficient
to warrant arrest of defendant under the statute. Strozzi v. Wines,
24 Nev. 389, 55 Pac. 828, 57 Pac. 832 (1899)
Cross-complaint demanding money judgment permitted. In action
of unlawful detainer of real
property governed by NCL ºº 9132-9152 (cf. NRS 40.220 et seq.),
cross-complaint demanding
money judgment is permitted in order that entire controversy
between parties may be determined in one action. West v. Edwards,
62 Nev. 1, 134 P.2d 932 (1943), cited, Volpert v. Papagna, 83
Nev. 429, at 434, 433 P.2d 533 (1967)
Provision for temporary writ of restitution intended to be
summary. Provisions of NCL º 9132 et seq. (cf. NRS 40.220 et
seq.) governing actions of forcible entry and detainer are often
summary in character, and provision of 1931 NCL º 9140 (cf. NRS
40.300) for temporary writ of restitution "upon application" was
likewise intended to be summary and did not contemplate notice of
application. Farnow v. Eighth Judicial Dist. Court, 64 Nev. 109,
178 P.2d 371 (1947),
distinguished, Whitney v. Second Judicial Dist. Court, 68 Nev. 176,
at 180, 227 P.2d 960 (1951)
Procedure presumed to be complete in itself. In action of forcible
entry and detainer, remedy afforded by NCL º 9132 et seq. (cf.
NRS 40.220 et seq.) was unknown to common law, and procedure
was presumed to be complete in itself. To apply procedural
provisions of other statutes would have violated intent of legislature
and introduced confusion and uncertainty into future
application of statute. Farnow v. Eighth Judicial Dist. Court, 64
Nev. 109, 178 P.2d 371 (1947), cited, Beyer v. Second Judicial
Dist. Court, 67 Nev. 480, at 486, 221 P.2d 1024 (1950), Gibby's,
Inc. v. Aylett, 96 Nev. 678, at 681, 615 P.2d 949 (1980)
40.230 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 fraud, intimidation or stealth, or by any kind of violence or
circumstance 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 natural possession.
[1911 CPA º 644; RL º 5586; NCL º 9133]
NEVADA CASES.
Object of action. Object of B ºº 41 and 42 (cf. NRS 40.220 et
seq.), relating to actions for forcible entry and detainer, is not to try
titles, but to preserve peace and prevent violence. Lachman v.
Barnett, 18 Nev. 269, 3 Pac. 38 (1884)
Complaint which did not allege fraud insufficient to warrant arrest
of defendant. Under secs. 1, 2 and 9, ch. 46, Stats. 1865 (cf. NRS
40.220-40.252, 40.254 and 40.300), relating to forcible entry and
unlawful detainer, complaint which did not allege fraud on part of
defendant, either in making such forcible entry or in holding such
possession by force, was radically defective and wholly
insufficient to warrant arrest of defendant under the statute. Strozzi
v. Wines, 24 Nev. 389, 55 Pac. 828, 57 Pac. 832 (1899)
40.240 Forcible detainer defined.
Every person is guilty of a forcible detainer who either:
1. By force, or by menaces or threats of violence, unlawfully
holds and keeps the possession of any real property, whether the
same was acquired peaceably or otherwise; or
2. Who, in the nighttime, or during the absence of the occupant of
any real property, unlawfully enters thereon, and who, after demand
made for the surrender thereof, refuses for a period of 3 days to
surrender the same to such former occupant. The occupant of real
property within the meaning of this subsection is one who, within 5
days preceding such unlawful entry, was in the peaceable and
undisturbed possession of such lands.
[1911 CPA º 645; RL º 5587; NCL º 9134]
NEVADA CASES.
Complaint which did not allege fraud insufficient to warrant arrest
of defendant. Under secs. 1, 2 and 9, ch. 46, Stats. 1865 (cf. NRS
40.220-40.252, 40.254 and 40.300), relating to forcible entry and
unlawful detainer, complaint which did not allege fraud on part of
defendant, either in making such forcible entry or in holding such
possession by force, was radically defective and wholly insufficient
to warrant arrest of defendant under the statute. Strozzi v. Wines,
24 Nev. 389, 55 Pac. 828, 57 Pac. 832 (1899)
40.250 Unlawful detainer: Possession after expiration of term. A
tenant of real property or a mobile home for a term less
than life is guilty of an unlawful detainer when he continues in
possession, in person or by subtenant, of the property or mobile
home or any part thereof, after the expiration of the term for which
it is let to him. In all cases where real property is leased for a
specified term or period, or by express or implied contract, whether
written or parol, the tenancy terminates without notice at the
expiration of the specified term or period.
[1911 CPA º 646; A 1917, 31; 1919 RL º 5588; NCL º
9135]--(NRS A 1969, 262, 574; 1973, 1084; 1977, 1344; 1979,
1877; 1985, 227)
NEVADA CASES.
Judgment upon confession.
Judgment upon confession cannot be entered in justice's court in
action for forcible entry and unlawful detainer. Paul v. Armstrong,
1 Nev. 82 (1865)
Landlord and tenant relationship. Before
unlawful detainer action will lie, relation of landlord and
tenant must exist between parties. Paul v. Armstrong, 1
Nev. 82 (1865), cited, Gasser v. Jet Craft, Ltd., 87 Nev. 376, at
379, 487 P.2d 346 (1971)
Holdover lessee became liable for stipulated rent for entire term
although premises were vacated before term expired. Under sec. 4,
ch. 81, Stats. 1865 (cf. NRS 40.250), which provided that when
lessee held over with consent of lessor and lease was for term of
less than 1 year, tenancy created was that designated in lease, where
term designated was 3 months and lessor had not relinquished his
right to rent, lessee became liable for stipulated rent for entire term,
although premises were vacated before term expired. Fitton v.
Inhabitants of Hamilton City, 6 Nev. 196
(1870)
Complaint which did not allege fraud insufficient to warrant arrest
of defendant. Under secs. 1, 2 and 9, ch. 46, Stats. 1865 (cf. NRS
40.220-40.252, 40.254 and 40.300), relating to forcible entry and
unlawful detainer, complaint which did not allege fraud on part of
defendant, either in making such forcible entry or in holding such
possession by force, was radically defective and wholly insufficient
to warrant arrest of defendant under statute. Strozzi v. Wines, 24
Nev. 389, 55 Pac. 828, 57 Pac. 832 (1899)
Prima facie showing that landlord-tenant
relationship exists should not preclude defendant from showing
other facts. Purpose of unlawful detainer statute, RL º 5588 (cf.
NRS 40.250-40.252 and 40.254), is to afford summary remedy to
landlords where true
relationship of landlord and tenant existed. Such
relationship is foundation of action, and prima facie showing that
relationship exists should not preclude defendant from
showing other facts which would establish nonexistence of such
relationship. Yori v. Phenix, 38
Nev. 277, 149 Pac. 180 (1915), cited, Volpert v. Papagna, 83 Nev.
429, at 434, 433 P.2d 533
(1967)
Common law rule that title cannot be placed in issue in action for
forcible entry does not apply in action for unlawful detainer. Action
for unlawful detainer, as defined in RL º 5588 (cf. NRS
40.250-40.252 and 40.254), is designed to afford to
landlord summary remedy for recovery of leased premises
and was unknown to common law. It affords different remedy than
common law action of forcible detainer which is designed to keep
peace, and rule that title cannot be placed in issue in action for
common law forcible entry does not apply in action for unlawful
detainer, which can be maintained only where landlord and
tenant relationship exists or existed. Yori v. Phenix, 38
Nev. 277, 149 Pac. 180 (1915), cited, Farnow v. Eighth Judicial
Dist. Court, 64 Nev. 109, at 121, 178 P.2d 371 (1947), Gibby's,
Inc. v. Aylett, 96 Nev. 678, at 680, 615 P.2d 949 (1980)
Defendant may introduce evidence that lease constituted
mortgage. Action for unlawful detainer, defined in RL º 5588 (cf.
NRS 40.250-40.252 and 40.254), can be maintained only where
landlord-tenant relationship exists or existed, and
defendant in such action should have been permitted to introduce
evidence showing that deed given by him to plaintiff,
and lease given in return, did not create
landlord-tenant relationship but constituted
security transaction in connection with loan, and, pursuant to RL º
5518 (cf. NRS
40.050), constituted mortgage which could be enforced only by
action of foreclosure as provided by RL º 5501 (cf. NRS 40.430).
Yori v. Phenix, 38 Nev. 277, 149 Pac. 180 (1915), cited, Hannig v.
Conger, 54 Nev. 388, at 394, 19 P.2d 769 (1933), Flyge v. Flynn,
63 Nev. 201, at 224, 166 P.2d 539 (1946), Volpert v. Papagna, 83
Nev. 429, at 434, 433 P.2d 533 (1967)
Complaint must show
that detention of premises is
unlawful within meaning of
statute. One seeking
summary relief in unlawful
detainer action pursuant to sec.
1, ch. 27, Stats. 1917 (cf. NRS
40.250-40.252 and 40.254), must
bring himself clearly within
terms of detainer statute, and
his complaint must show that
detention of premises is
unlawful within meaning of
statute. Roberts v. Second
Judicial Dist. Court, 43 Nev.
332, 185 Pac. 1067 (1920),
cited, Gasser v. Jet Craft,
Ltd., 87 Nev. 376, at 380, 387
P.2d 346 (1971)
Water rights may be
subject of unlawful detainer.
Water rights may be
subject of unlawful detainer
under RL º 5588 (cf. NRS 40.250-
40.252) because they are realty
as to which relation of landlord
and tenant may exist. Nenzel v.
Rochester Silver Corp., 50 Nev.
352, 259 Pac. 632 (1927), cited,
In re Filippini, 66 Nev. 17, at
22, 202 P.2d 535 (1949), Carson
City v. Estate of Lompa, 88 Nev.
541, at 542, 501 P.2d 662 (1972)
40.251 Unlawful detainer: Possession of
property leased for indefinite time after notice to
quit. A tenant of real property, a recreational
vehicle or a mobile home for a term less than life is
guilty of an unlawful detainer when having leased:
1. Real property, except as otherwise provided in
this section, or a mobile home for an indefinite time,
with monthly or other periodic rent reserved, he
continues in possession thereof, in person or by
subtenant, without the landlord's consent after the
expiration of a notice of:
(a) For tenancies from week to week, at least 7
days;
(b) For all other periodic tenancies, at least 30
days; or
(c) For tenancies at will, at least 5 days.
2. A dwelling unit subject to the provisions of
chapter 118A of NRS, he continues in possession, in
person or by subtenant, without the landlord's consent
after expiration of:
(a) The term of the rental agreement or its
termination and, except as otherwise provided in
paragraph (b), the expiration of a notice of at least
7 days for tenancies from week to week and 30 days for
all other periodic tenancies; or
(b) A notice of at least 5 days where the tenant has
failed to perform his basic or contractual obligations
under chapter 118A of NRS.
3. A mobile home lot subject to the provisions of
chapter 118B of NRS, or a lot for a recreational
vehicle in an area of a mobile home park other than an
area designated as a recreational vehicle lot pursuant
to the provisions of subsection 6 of NRS 40.215, he
continues in possession, in person or by subtenant,
without the landlord's consent, after notice has been
given pursuant to NRS 118B.190 and the period of the
notice has expired.
4. A recreational vehicle lot, he continues in
possession, in person or by subtenant, without the
landlord's consent, after the expiration of a notice
of at least 5 days.
(Added to NRS by 1985, 226; A 1989, 1081)
NEVADA CASES.
Complaint which did not allege
fraud insufficient to warrant
arrest of defendant. Under
secs. 1, 2 and 9, ch. 46, Stats.
1865 (cf. NRS 40.220-40.252,
40.254 and 40.300), relating to
forcible entry and unlawful
detainer, complaint which did
not allege fraud on part of
defendant, either in making such
forcible entry or in holding
such possession by force, was
radically defective and wholly
insufficient to warrant arrest
of defendant under the statute.
Strozzi v. Wines, 24 Nev. 389,
55 Pac. 828, 57 Pac. 832 (1899)
Prima facie showing
that landlord-tenant
relationship exists should not
preclude defendant from showing
other facts. Purpose of
unlawful detainer statute, RL º
5588 (cf. NRS 40.250-40.252 and
40.254), is to afford summary
remedy to landlords where true
relationship of landlord and
tenant existed. Such
relationship is foundation of
action, and prima facie showing
that relationship exists should
not preclude defendant from
showing other facts which would
establish nonexistence of such
relationship. Yori v. Phenix, 38
Nev. 277, 149 Pac. 180 (1915),
cited, Volpert v. Papagna, 83
Nev. 429, at 434, 433 P.2d 533
(1967)
Common law rule that
title cannot be placed in issue
in action for forcible entry
does not apply to action for
unlawful detainer. Action
for unlawful detainer, as
defined in RL º 5588 (cf. NRS
40.250-40.252 and 40.254), is
designed to afford to landlord
summary remedy for recovery of
leased premises and was unknown
to common law. It affords
different remedy than common law
action of forcible detainer
which is designed to keep peace,
and rule that title cannot be
placed in issue in action for
common law forcible entry does
not apply in action for unlawful
detainer, which can be
maintained only where landlord
and tenant relationship exists
or existed. Yori v. Phenix, 38
Nev. 277, 149 Pac. 180 (1915),
cited, Farnow v. Eighth Judicial
Dist. Court, 64 Nev. 109, at
121, 178 P.2d 371 (1947),
Gibby's, Inc. v. Aylett, 96 Nev.
678, at 680, 615 P.2d 949 (1980)
Defendant may introduce
evidence that lease constituted
mortgage. Action for
unlawful detainer, defined in RL
º 5588 (cf. NRS 40.250-40.252
and 40.254), can be maintained
only where landlord-tenant
relationship exists or existed,
and defendant in such action
should have been permitted to
introduce evidence showing that
deed given by him to plaintiff,
and lease given in return, did
not create landlord-tenant
relationship but constituted
security transaction in
connection with loan, and,
pursuant to RL º 5518 (cf. NRS
40.050), constituted mortgage
which could be enforced only by
action of foreclosure as
provided by RL º 5501 (cf. NRS
40.430). Yori v. Phenix, 38 Nev.
277, 149 Pac. 180 (1915), cited,
Hannig v. Conger, 54 Nev. 388,
at 394, 19 P.2d 769 (1933),
Flyge v. Flynn, 63 Nev. 201, at
224, 166 P.2d 539 (1946),
Volpert v. Papagna, 83 Nev. 429,
at 434, 433 P.2d 533 (1967)
Complaint must show
that detention of premises is
unlawful within meaning of
statute. One seeking
summary relief in unlawful
detainer action pursuant to sec.
1, ch. 27, Stats. 1917 (cf. NRS
40.250-40.252 and 40.254), must
bring himself clearly within
terms of detainer statute, and
his complaint must show that
detention of premises is
unlawful within meaning of
statute. Roberts v. Second
Judicial Dist. Court, 43 Nev.
332, 185 Pac. 1067 (1920),
cited, Gasser v. Jet Craft,
Ltd., 87 Nev. 376, at 380, 387
P.2d 346 (1971)
Notice to quit must be
specific and peremptory.
To terminate month-to-
month tenancy so that detention
thereafter will be unlawful
pursuant to sec. 1, ch. 27,
Stats. 1917 (cf. NRS 40.251),
notice to quit must be specific
and peremptory. Conditional or
uncertain notice will not answer
requirements of statute. Where
notice stated that use of
premises disturbed other tenants
of building and that landlord
could not continue to rent
premises for such purpose,
notice was not sufficient under
statute. (See NRS 40.2516.)
Roberts v. Second Judicial Dist.
Court, 43 Nev. 332, 185 Pac.
1067 (1920), distinguished,
Beyer v. Second Judicial Dist.
Court, 67 Nev. 480, at 488, 221
P.2d 1024 (1950), Volpert v.
Papagna, 83 Nev. 429, at 433,
433 P.2d 533 (1967), Davidsohn
v. Doyle, 108 Nev. 145, at 150,
825 P.2d 1227 (1992)
Notice to quit must be
made to appear by express
averment in complaint.
Before landlord can resort
to summary remedy of action for
unlawful detainer of premises
held in month-to-month tenancy
under sec. 1, ch. 27, Stats.
1917 (cf. NRS 40.251), he must
terminate tenancy by serving
notice to quit possession as
required by such section. Notice
to quit, being part of statutory
definition of offense,
necessarily enters into gist of
action and must be made to
appear by express averment in
complaint. Roberts v. Second
Judicial Dist. Court, 43 Nev.
332, 185 Pac. 1067 (1920),
cited, Gasser v. Jet Craft,
Ltd., 87 Nev. 376, at 380, 487
P.2d 346 (1971)
Where complaint did not
show that landlord had given
unequivocal notice, action was
not clearly for unlawful
detainer and statutory period
for appeals generally applied.
In action in justice's
court for possession of premises
held in month-to-month tenancy
and for damages, where complaint
did not show that landlord had
given tenant unequivocal notice
to quit pursuant to sec. 1, ch.
27, Stats. 1917 (cf. NRS
40.251), action was not clearly
for unlawful detainer, and
district court had jurisdiction
to proceed with action where
appeal was taken within 30-day
statutory period generally
allowed for appeals from
justice's court, but not within
10-day period provided by RL º
5601 (cf. NRS 40.380) in
unlawful detainer actions.
Mandamus issued requiring
district court to proceed.
Roberts v. Second Judicial Dist.
Court, 43 Nev. 332, 185 Pac.
1067 (1920), cited, State ex
rel. Weber v. McFadden, 46 Nev.
1, at 7, 205 Pac. 594 (1922),
distinguished, Beyer v. Second
Judicial Dist. Court, 67 Nev.
480, at 488, 221 P.2d 1024
(1950)
Water rights may be
subject of unlawful detainer.
Water rights may be
subject of unlawful detainer
under RL º 5588 (cf. NRS 40.250-
40.252) because they are realty
as to which relation of landlord
and tenant may exist. Nenzel v.
Rochester Silver Corp., 50 Nev.
352, 259 Pac. 632 (1927), cited,
In re Filippini, 66 Nev. 17, at
22, 202 P.2d 535 (1949), Carson
City v. Estate of Lompa, 88 Nev.
541, at 542, 501 P.2d 662 (1972)
40.2512 Unlawful detainer: Possession after
default in payment of rent. A tenant of real
property or a mobile home for a term less than life is
guilty of an unlawful detainer when he continues in
possession, in person or by subtenant, after default
in the payment of any rent and after a notice in
writing, requiring in the alternative the payment of
the rent or the surrender of the detained premises,
remains uncomplied with for a period of 5 days, or in
the case of a mobile home lot, 10 days after service
thereof. The notice may be served at any time after
the rent becomes due.
(Added to NRS by 1985, 226)
NEVADA CASES.
Necessity of proving
statutorily required facts.
Where statute requires
certain facts to be proved to
warrant issuing of process in
court of special and limited
jurisdiction, if there be defect
of proof as to essential point,
process will be void. Paul v.
Armstrong, 1 Nev. 82 (1865),
cited, Phillips v. Snowden
Placer Co., 40 Nev. 66, at 87,
160 Pac. 786 (1916)
Complaint which did not
allege fraud insufficient to
warrant arrest of defendant.
Under secs. 1, 2 and 9,
ch. 46, Stats. 1865 (cf. NRS
40.220-40.252, 40.254 and
40.300), relating to forcible
entry and unlawful detainer,
complaint which did not allege
fraud on part of defendant,
either in making such forcible
entry or in holding such
possession by force, was
radically defective and wholly
insufficient to warrant arrest
of defendant under statute.
Strozzi v. Wines, 24 Nev. 389,
55 Pac. 828, 57 Pac. 832 (1899)
Prima facie showing
that landlord-tenant
relationship exists should not
preclude defendant from showing
other facts. Purpose of
unlawful detainer statute, RL º
5588 (cf. NRS 40.250-40.252 and
40.254), is to afford summary
remedy to landlords where true
relationship of landlord and
tenant existed. Such
relationship is foundation of
action, and prima facie showing
that relationship exists should
not preclude defendant from
showing other facts which would
establish nonexistence of such
relationship. Yori v. Phenix, 38
Nev. 277, 149 Pac. 180 (1915),
cited, Volpert v. Papagna, 83
Nev. 429, at 434, 433 P.2d 533
(1967)
Common law rule that
title cannot be placed in issue
in action for forcible entry
does not apply in action for
unlawful detainer. Action
for unlawful detainer, as
defined in RL º 5588 (cf. NRS
40.250-40.252 and 40.254), is
designed to afford to landlord
summary remedy for recovery of
leased premises and was unknown
to common law. It affords
different remedy than common law
action of forcible detainer
which is designed to keep peace,
and rule that title cannot be
placed in issue in action for
common law forcible entry does
not apply in action for unlawful
detainer, which can be
maintained only where landlord
and tenant relationship exists
or existed. Yori v. Phenix, 38
Nev. 277, 149 Pac. 180 (1915),
cited, Farnow v. Eighth Judicial
Dist. Court, 64 Nev. 109, at
121, 178 P.2d 371 (1947),
Gibby's, Inc. v. Aylett, 96 Nev.
678, at 680, 615 P.2d 949 (1980)
Defendant may introduce
evidence that lease constituted
mortgage. Action for
unlawful detainer, defined in RL
º 5588 (cf. NRS 40.250-40.252
and 40.254), can be maintained
only where landlord-tenant
relationship exists or existed,
and defendant in such action
should have been permitted to
introduce evidence showing that
deed given by him to plaintiff,
and lease given in return, did
not create landlord-tenant
relationship but constituted
security transaction in
connection with loan, and,
pursuant to RL º 5518 (cf. NRS
40.050), constituted mortgage
which could be enforced only by
action of foreclosure as
provided by RL º 5501 (cf. NRS
40.430). Yori v. Phenix, 38 Nev.
277, 149 Pac. 180 (1915), cited,
Hannig v. Conger, 54 Nev. 388,
at 394, 19 P.2d 769 (1933),
Flyge v. Flynn, 63 Nev. 201, at
224, 166 P.2d 539 (1946),
Volpert v. Papagna, 83 Nev. 429,
at 434, 433 P.2d 533 (1967)
Complaint must show
that detention of premises is
unlawful within meaning of
statute. One seeking
summary relief in unlawful
detainer action pursuant to sec.
1, ch. 27, Stats. 1917 (cf. NRS
40.250-40.252 and 40.254), must
bring himself clearly within
terms of detainer statute, and
his complaint must show that
detention of premises is
unlawful within meaning of
statute. Roberts v. Second
Judicial Dist. Court, 43 Nev.
332, 185 Pac. 1067 (1920),
cited, Gasser v. Jet Craft,
Ltd., 87 Nev. 376, at 380, 387
P.2d 346 (1971)
Subsequent grantee of
of reversion from lessor had no
power to increase rent of lessee
of water rights under certain
written lease. Where
defendant in action of unlawful
detainer under sec. 1, ch. 27,
Stats. 1917 (cf. NRS 40.2512),
was in possession of water
rights under written lease and
subsequent oral agreement as to
amount of rent, plaintiff, who
was subsequent grantee of
reversion from lessor, had no
power to increase amount of
rent, and because lease gave
defendant option to extend lease
and contained no requirement of
notice of his election to do so,
it was unnecessary for him to
give notice. Judgment for
plaintiff for possession of
premises and for rent as
increased was reversed and cause
remanded for new trial. Nenzel
v. Rochester Silver Corp., 48
Nev. 41, 226 Pac. 1102 (1924)
Water rights may be
subject of unlawful detainer.
Water rights may be
subject of unlawful detainer
under RL º 5588 (cf. NRS 40.250-
40.252) because they are realty
as to which relation of landlord
and tenant may exist. Nenzel v.
Rochester Silver Corp., 50 Nev.
352, 259 Pac. 632 (1927), cited,
In re Filippini, 66 Nev. 17, at
22, 202 P.2d 535 (1949), Carson
City v. Estate of Lompa, 88 Nev.
541, at 542, 501 P.2d 662 (1972)
Court rule on payment
of costs of previous action as
condition precedent for
successive action inapplicable
where previous action was
distinct claim. Even
though successive unlawful
detainer actions were brought by
plaintiff against same
defendant, fact that one was
based on breach of covenant
against subletting and other
based on nonpayment of rent,
which are distinct claims
recognized in NRS 40.2512 and
40.2514, prevented application
of rule found in N.R.C.P. 41(d),
which permits trial court to
order payment of costs of
previously dismissed action as
condition precedent to
maintenance of second action
based upon or including same
claim. Volpert v. Papagna, 83
Nev. 429, 433 P.2d 533 (1967)
Notice to pay or quit
which contained reservation of
right to change amount of rent
due was legally sufficient.
In unlawful detainer
action, where notice to pay or
quit, which was required by NRS
40.2512, contained reservation
of right to change amount of
rent shown as due, notice was
legally sufficient because
statute does not require
specification of amount, and
notice otherwise met substantial
compliance test provided in NRS
40.390. Volpert v. Papagna, 83
Nev. 429, 433 P.2d 533 (1967),
cited, Gasser v. Jet Craft,
Ltd., 87 Nev. 376, at 380, 387
P.2d 346 (1971)
Requirement that notice
be in alternative was
jurisdictional and court could
not enter judgment for rent in
absence of judgment for
restitution. In unlawful
detainer action, where notice to
quit did not demand payment of
rent, either in alternative or
at all, trial court did not err
in failing to determine amount
of rent owing, because
requirement of NRS 40.2512 that
notice be in alternative was
jurisdictional, and, under NRS
40.360, court could not enter
judgment for rent in absence of
judgment for restitution. Claim
for rent was incident to
unlawful detainer, and failed
when main object of action
failed. Gasser v. Jet Craft,
Ltd., 87 Nev. 376, 487 P.2d 346
(1971), cited, American Fence,
Inc. v. Wham, 93 Nev. 26, at 27,
559 P.2d 824 (1977), American
Fence, Inc. v. Wham, 95 Nev.
788, at 791, 603 P.2d 274
(1977), American Fence, Inc. v.
Wham, 95 Nev. 788, at 791, 603
P.2d 274 (1979), Gibby's, Inc.
v. Aylett, 96 Nev. 678, at 681,
615 P.2d 949 (1980)
FEDERAL AND OTHER CASES.
Constitutionality of
prejudgment seizure of tenant's
property. Provisions of
former NRS 108.510 et seq.,
relating to liens of landlords
of rental housing, which
permitted prejudgment seizure of
tenant's property without notice
and hearing, were
unconstitutional denial of
procedural due process of law
regardless of notice and
opportunity for hearing afforded
in unlawful detainer proceedings
under NRS 40.215 et seq. (See
NRS 40.2512 and 40.253.) Adams
v. Sanson Inv. Co., 376 F. Supp.
61 (1974)
40.2514 Unlawful detainer: Assignment or
subletting contrary to lease; waste; unlawful
business; nuisance; violations of controlled
substances laws. A tenant of real property or a
mobile home for a term less than life is guilty of an
unlawful detainer when he:
1. Assigns or sublets the leased premises contrary
to the covenants of the lease;
2. Commits or permits waste thereon;
3. Sets up or carries on therein or thereon any
unlawful business;
4. Suffers permits or maintains on or about the
premises any nuisance; or
5. Violates any of the provisions of NRS 453.011 to
453.552, inclusive, except NRS 453.336, therein or
thereon,
and remains in possession after service upon him of 3
days' notice to quit.
(Added to NRS by 1985, 226; A 1989, 1232)
NRS CROSS REFERENCES.
Controlled substances,
NRS chapter 453.
Possession of controlled
substance not for purpose of
sale, NRS 453.336.
NEVADA CASES.
Complaint which did not allege
fraud insufficient to warrant
arrest of defendant. Under
secs. 1, 2 and 9, ch. 46, Stats.
1865 (cf. NRS 40.220-40.252,
40.254 and 40.300), relating to
forcible entry and unlawful
detainer, complaint which did
not allege fraud on part of
defendant, either in making such
forcible entry or in holding
such possession by force, was
radically defective and wholly
insufficient to warrant arrest
of defendant under statute.
Strozzi v. Wines, 24 Nev. 389,
55 Pac. 828, 57 Pac. 832 (1899)
Prima facie showing
that landlord-tenant
relationship exists should not
preclude defendant from showing
other facts. Purpose of
unlawful detainer statute, RL º
5588 (cf. NRS 40.250-40.252 and
40.254), is to afford summary
remedy to landlords where true
relationship of landlord and
tenant existed. Such
relationship is foundation of
action, and prima facie showing
that relationship exists should
not preclude defendant from
showing other facts which would
establish nonexistence of such
relationship. Yori v. Phenix, 38
Nev. 277, 149 Pac. 180 (1915),
cited, Volpert v. Papagna, 83
Nev. 429, at 434, 433 P.2d 533
(1967)
Common law rule that
title cannot be placed in issue
in action for forcible entry
does not apply in action for
unlawful detainer. Action
for unlawful detainer, as
defined in RL º 5588 (cf. NRS
40.250-40.252 and 40.254), is
designed to afford to landlord
summary remedy for recovery of
leased premises and was unknown
to common law. It affords
different remedy than common law
action of forcible detainer
which is designed to keep peace,
and rule that title cannot be
placed in issue in action for
common law forcible entry does
not apply in action for unlawful
detainer, which can be
maintained only where landlord
and tenant relationship exists
or existed. Yori v. Phenix, 38
Nev. 277, 149 Pac. 180 (1915),
cited, Farnow v. Eighth Judicial
Dist. Court, 64 Nev. 109, at
121, 178 P.2d 371 (1947),
Gibby's, Inc. v. Aylett, 96 Nev.
678, at 680, 615 P.2d 949 (1980)
Defendant may introduce
evidence that lease constituted
mortgage. Action for
unlawful detainer, defined in RL
º 5588 (cf. NRS 40.250-40.252
and 40.254), can be maintained
only where landlord-tenant
relationship exists or existed,
and defendant in such action
should have been permitted to
introduce evidence showing that
deed given by him to plaintiff,
and lease given in return, did
not create landlord-tenant
relationship but constituted
security transaction in
connection with loan, and,
pursuant to RL º 5518 (cf. NRS
40.050), constituted mortgage
which could be enforced only by
action of foreclosure as
provided by RL º 5501 (cf. NRS
40.430). Yori v. Phenix, 38 Nev.
277, 149 Pac. 180 (1915), cited,
Hannig v. Conger, 54 Nev. 388,
at 394, 19 P.2d 769 (1933),
Flyge v. Flynn, 63 Nev. 201, at
224, 166 P.2d 539 (1946),
Volpert v. Papagna, 83 Nev. 429,
at 434, 433 P.2d 533 (1967)
Complaint must show
that detention of premises is
unlawful within meaning of
statute. One seeking
summary relief in unlawful
detainer action pursuant to sec.
1, ch. 27, Stats. 1917 (cf. NRS
40.250-40.252 and 40.254), must
bring himself clearly within
terms of detainer statute, and
his complaint must show that
detention of premises is
unlawful within meaning of
statute. Roberts v. Second
Judicial Dist. Court, 43 Nev.
332, 185 Pac. 1067 (1920),
cited, Gasser v. Jet Craft,
Ltd., 87 Nev. 376, at 380, 387
P.2d 346 (1971)
Water rights may be
subject of unlawful detainer.
Water rights may be
subject of unlawful detainer
under RL º 5588 (cf. NRS 40.250-
40.252) because they are realty
as to which relation of landlord
and tenant may exist. Nenzel v.
Rochester Silver Corp., 50 Nev.
352, 259 Pac. 632 (1927), cited,
In re Filippini, 66 Nev. 17, at
22, 202 P.2d 535 (1949), Carson
City v. Estate of Lompa, 88 Nev.
541, at 542, 501 P.2d 662 (1972)
Court rule on payment
of costs of previous action as
condition precedent for
successive action inapplicable
where previous action was
distinct claim. Even
though successive unlawful
detainer actions were brought by
plaintiff against same
defendant, fact that one was
based on breach of covenant
against subletting and other
based on nonpayment of rent,
which are distinct claims
recognized in NRS 40.2512 and
40.2514, prevented application
of rule found in N.R.C.P. 41(d),
which permits trial court to
order payment of costs of
previously dismissed action as
condition precedent to
maintenance of second action
based upon or including same
claim. Volpert v. Papagna, 83
Nev. 429, 433 P.2d 533 (1967)
40.2516 Unlawful detainer: Possession after
failure to perform conditions of lease; saving lease
from forfeiture. A tenant of real property or a
mobile home for a term less than life is guilty of an
unlawful detainer when he continues in possession, in
person or by subtenant, after a neglect or failure to
perform any condition or covenant of the lease or
agreement under which the property or mobile home is
held, other than those mentioned in NRS 40.250 to
40.252, inclusive, and NRS 40.254, and after notice in
writing, requiring in the alternative the performance
of the condition or covenant or the surrender of the
property, served upon him, and, if there is a
subtenant in actual occupation of the premises, also
upon the subtenant, remains uncomplied with for 5 days
after the service thereof. Within 3 days after the
service, 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 condition or covenant and thereby save
the lease from forfeiture; but if the covenants and
conditions of the lease, violated by the lessee,
cannot afterwards be performed, then no notice need be
given.
(Added to NRS by 1985, 226)
NEVADA CASES.
Complaint which did not allege
fraud insufficient to warrant
arrest of defendant. Under
secs. 1, 2 and 9, ch. 46, Stats.
1865 (cf. NRS 40.220-40.252,
40.254 and 40.300), relating to
forcible entry and unlawful
detainer, complaint which did
not allege fraud on part of
defendant, either in making such
forcible entry or in holding
such possession by force, was
radically defective and wholly
insufficient to warrant arrest
of defendant under statute.
Strozzi v. Wines, 24 Nev. 389,
55 Pac. 828, 57 Pac. 832 (1899)
Prima facie showing
that landlord-tenant
relationship exists should not
preclude defendant from showing
other facts. Purpose of
unlawful detainer statute, RL º
5588 (cf. NRS 40.250-40.252 and
40.254), is to afford summary
remedy to landlords where true
relationship of landlord and
tenant existed. Such
relationship is foundation of
action, and prima facie showing
that relationship exists should
not preclude defendant from
showing other facts which would
establish nonexistence of such
relationship. Yori v. Phenix, 38
Nev. 277, 149 Pac. 180 (1915),
cited, Volpert v. Papagna, 83
Nev. 429, at 434, 433 P.2d 533
(1967)
Common law rule that
title cannot be placed in issue
in action for forcible entry
does not apply in action for
unlawful detainer. Action
for unlawful detainer, as
defined in RL º 5588 (cf. NRS
40.250-40.252 and 40.254), is
designed to afford to landlord
summary remedy for recovery of
leased premises and was unknown
to common law. It affords
different remedy than common law
action of forcible detainer
which is designed to keep peace,
and rule that title cannot be
placed in issue in action for
common law forcible entry does
not apply in action for unlawful
detainer, which can be
maintained only where landlord
and tenant relationship exists
or existed. Yori v. Phenix, 38
Nev. 277, 149 Pac. 180 (1915),
cited, Farnow v. Eighth Judicial
Dist. Court, 64 Nev. 109, at
121, 178 P.2d 371 (1947),
Gibby's, Inc. v. Aylett, 96 Nev.
678, at 680, 615 P.2d 949 (1980)
Defendant may introduce
evidence that lease constituted
mortgage. Action for
unlawful detainer, defined in RL
º 5588 (cf. NRS 40.250-40.252
and 40.254), can be maintained
only where landlord-tenant
relationship exists or existed,
and defendant in such action
should have been permitted to
introduce evidence showing that
deed given by him to plaintiff,
and lease given in return, did
not create landlord-tenant
relationship but constituted
security transaction in
connection with loan, and,
pursuant to RL º 5518 (cf. NRS
40.050), constituted mortgage
which could be enforced only by
action of foreclosure as
provided by RL º 5501 (cf. NRS
40.430). Yori v. Phenix, 38 Nev.
277, 149 Pac. 180 (1915), cited,
Hannig v. Conger, 54 Nev. 388,
at 394, 19 P.2d 769 (1933),
Flyge v. Flynn, 63 Nev. 201, at
224, 166 P.2d 539 (1946),
Volpert v. Papagna, 83 Nev. 429,
at 434, 433 P.2d 533 (1967)
Complaint must show
that detention of premises is
unlawful within meaning of
statute. One seeking
summary relief in unlawful
detainer action pursuant to sec.
1, ch. 27, Stats. 1917 (cf. NRS
40.250-40.252 and 40.254), must
bring himself clearly within
terms of detainer statute, and
his complaint must show that
detention of premises is
unlawful within meaning of
statute. Roberts v. Second
Judicial Dist. Court, 43 Nev.
332, 185 Pac. 1067 (1920),
cited, Gasser v. Jet Craft,
Ltd., 87 Nev. 376, at 380, 387
P.2d 346 (1971)
Notice to quit must be
specific and peremptory.
To terminate month-to-
month tenancy so that detention
thereafter will be unlawful
pursuant to sec. 1, ch. 27,
Stats. 1917 (cf. NRS 40.251),
notice to quit must be specific
and peremptory. Conditional or
uncertain notice will not answer
requirements of statute. Where
notice stated that use of
premises disturbed other tenants
of building and that landlord
could not continue to rent
premises for such purpose,
notice was not sufficient under
statute. (See NRS 40.2516.)
Roberts v. Second Judicial Dist.
Court, 43 Nev. 332, 185 Pac.
1067 (1920), distinguished,
Beyer v. Second Judicial Dist.
Court, 67 Nev. 480, at 488, 221
P.2d 1024 (1950), Volpert v.
Papagna, 83 Nev. 429, at 433,
433 P.2d 533 (1967), Davidsohn
v. Doyle, 108 Nev. 145, at 150,
825 P.2d 1227 (1992)
Water rights may be
subject of unlawful detainer.
Water rights may be
subject of unlawful detainer
under RL º 5588 (cf. NRS 40.250-
40.252) because they are realty
as to which relation of landlord
and tenant may exist. Nenzel v.
Rochester Silver Corp., 50 Nev.
352, 259 Pac. 632 (1927), cited,
In re Filippini, 66 Nev. 17, at
22, 202 P.2d 535 (1949), Carson
City v. Estate of Lompa, 88 Nev.
541, at 542, 501 P.2d 662 (1972)
Acceptance of rent with
knowledge of default constituted
waiver of right of lessor to
terminate lease. In action
by lessee to recover agreed
portion of deposit made pursuant
to covenant to improve premises,
where lessor counterclaimed for
forfeiture of lease by reason of
breaches of terms, acceptance by
lessor of rent with knowledge of
default was consistent only with
intent to hold lessee to terms
of lease, constituted affirmance
of lease and waived right of
lessor to claim forfeiture. (See
NRS 40.2516.) Sharp v. Twin
Lakes Corp., 71 Nev. 162, 283
P.2d 611 (1955), cited, Reno
Realty & Inv. Co. v. Hornstein,
72 Nev. 219, at 224, 301 P.2d
1051 (1956), Summa Corp. v.
Richardson, 93 Nev. 228, at 234,
564 P.2d 181 (1977),
distinguished, Davidsohn v.
Doyle, 108 Nev. 145, at 148, 825
P.2d 1227 (1992)
Notice to quit
jurisdictionally required to be
phrased in alternative with
respect to default capable of
being cured. In unlawful
detainer action, where notice to
quit did not specify alleged
violations of lease covenants
nor demand cure of alleged
defaults, and complaint listed
alleged violations of covenants
all of which were susceptible to
cure, judgment for defendant was
affirmed on appeal, because,
under NRS 40.2516, notice to
quit must be phrased in
alternative with respect to any
default which is capable of
being cured, and such
requirement is jurisdictional.
Gasser v. Jet Craft, Ltd., 87
Nev. 376, 487 P.2d 346 (1971),
cited, American Fence, Inc. v.
Wham, 95 Nev. 788, at 791, 603
P.2d 274 (1979)
Compliance with notice
requirement. Before
terminating lease and
dispossessing lessee, lessor
must comply with notice
provision of former subsection
1(e) of NRS 40.250 (cf. NRS
40.2516). It may neither be
waived or neglected. Aikens v.
Andrews, 91 Nev. 746, 542 P.2d
734 (1975)
Lessor who sought to
terminate lease of commercial
property pursuant to provision
of lease was not required to
comply with notice provisions of
section. Where provision
in lease of commercial property
permitted lessor to reenter
property and terminate lease
upon breach by lessee, and
lessor, upon breach by lessee,
sent letter to lessee
terminating lease, lessee could
not prevail on argument that
lessor had failed to comply with
requirements of NRS 40.2516
concerning notice requirements
in actions for unlawful
detainer, because lessor who
seeks termination of lease
pursuant to provision of lease
is not obligated to meet notice
requirements of NRS 40.2516.
Davidsohn v. Doyle, 108 Nev.
145, 825 P.2d 1227 (1992)
Acceptance of rent
after breach did not constitute
waiver of right of lessor to
terminate lease.
Acceptance of rent by
lessor after breach of lease by
lessee did not constitute waiver
of right of lessor to terminate
lease where (1) lessor timely
pursued his action to terminate
lease, (2) lessor did not induce
lessee into believing breach
would be excused by payment of
rent, (3) lessee opposed action
and remained in possession of
leased premises, (4) lease
involved commercial property and
lessee was businesswoman
subleasing property for profit
and not unsophisticated
residential tenant in need of
special protection from lessor,
and (5) requiring lessor to
forego rental payments until
resolution of lengthy dispute
would have been unduly
burdensome. (See NRS 40.2516.)
Davidsohn v. Doyle, 108 Nev.
145, 825 P.2d 1227 (1992)
40.252 Unlawful detainer: Contractual
provisions void if contrary to specified periods of
notice; notice to quit or surrender by colessor is
valid unless showing other colessors did not authorize
notice. For the purposes of NRS 40.250 to
40.252, inclusive, and NRS 40.254:
1. It is unlawful for a landlord to attempt by
contract or other agreement to shorten the specified
periods of notice and any such contract or agreement
is void.
2. Notice to quit or surrender the premises which
was given by one colessor of real property or a mobile
home is valid unless it is affirmatively shown that
one or more of the other colessors did not authorize
the giving of the notice.
(Added to NRS by 1985, 227)
NEVADA CASES.
Complaint which did not allege
fraud insufficient to warrant
arrest of defendant. Under
secs. 1, 2 and 9, ch. 46, Stats.
1865 (cf. NRS 40.220-40.252,
40.254 and 40.300), relating to
forcible entry and unlawful
detainer, complaint which did
not allege fraud on part of
defendant, either in making such
forcible entry or in holding
such possession by force, was
radically defective and wholly
insufficient to warrant arrest
of defendant under statute.
Strozzi v. Wines, 24 Nev. 389,
55 Pac. 828, 57 Pac. 832 (1899)
Prima facie showing
that landlord-tenant
relationship exists should not
preclude defendant from showing
other facts. Purpose of
unlawful detainer statute, RL º
5588 (cf. NRS 40.250-40.252 and
40.254), is to afford summary
remedy to landlords where true
relationship of landlord and
tenant existed. Such
relationship is foundation of
action, and prima facie showing
that relationship exists should
not preclude defendant from
showing other facts which would
establish nonexistence of such
relationship. Yori v. Phenix, 38
Nev. 277, 149 Pac. 180 (1915),
cited, Volpert v. Papagna, 83
Nev. 429, at 434, 433 P.2d 533
(1967)
Common law rule that
title cannot be placed in issue
in action for forcible entry
does not apply in action for
unlawful detainer. Action
for unlawful detainer, as
defined in RL º 5588 (cf. NRS
40.250-40.252 and 40.254), is
designed to afford to landlord
summary remedy for recovery of
leased premises and was unknown
to common law. It affords
different remedy than common law
action of forcible detainer
which is designed to keep peace,
and rule that title cannot be
placed in issue in action for
common law forcible entry does
not apply in action for unlawful
detainer, which can be
maintained only where landlord
and tenant relationship exists
or existed. Yori v. Phenix, 38
Nev. 277, 149 Pac. 180 (1915),
cited, Farnow v. Eighth Judicial
Dist. Court, 64 Nev. 109, at
121, 178 P.2d 371 (1947),
Gibby's, Inc. v. Aylett, 96 Nev.
678, at 680, 615 P.2d 949 (1980)
Defendant can introduce
evidence that lease constituted
mortgage. Action for
unlawful detainer, defined in RL
º 5588 (cf. NRS 40.250-40.252
and 40.254), can be maintained
only where landlord-tenant
relationship exists or existed,
and defendant in such action
should have been permitted to
introduce evidence showing that
deed given by him to plaintiff,
and lease given in return, did
not create landlord-tenant
relationship but constituted
security transaction in
connection with loan, and,
pursuant to RL º 5518 (cf. NRS
40.050), constituted mortgage
which could be enforced only by
action of foreclosure as
provided by RL º 5501 (cf. NRS
40.430). Yori v. Phenix, 38 Nev.
277, 149 Pac. 180 (1915), cited,
Hannig v. Conger, 54 Nev. 388,
at 394, 19 P.2d 769 (1933),
Flyge v. Flynn, 63 Nev. 201, at
224, 166 P.2d 539 (1946),
Volpert v. Papagna, 83 Nev. 429,
at 434, 433 P.2d 533 (1967)
Complaint must show
that detention of premises is
unlawful within meaning of
statute. One seeking
summary relief in unlawful
detainer action pursuant to sec.
1, ch. 27, Stats. 1917 (cf. NRS
40.250-40.252 and 40.254), must
bring himself clearly within
terms of detainer statute, and
his complaint must show that
detention of premises is
unlawful within meaning of
statute. Roberts v. Second
Judicial Dist. Court, 43 Nev.
332, 185 Pac. 1067 (1920),
cited, Gasser v. Jet Craft,
Ltd., 87 Nev. 376, at 380, 387
P.2d 346 (1971)
Water rights may be
subject of unlawful detainer.
Water rights may be
subject of unlawful detainer
under RL º 5588 (cf. NRS 40.250-
40.252) because they are realty
as to which relation of landlord
and tenant may exist. Nenzel v.
Rochester Silver Corp., 50 Nev.
352, 259 Pac. 632 (1927), cited,
In re Filippini, 66 Nev. 17, at
22, 202 P.2d 535 (1949), Carson
City v. Estate of Lompa, 88 Nev.
541, at 542, 501 P.2d 662 (1972)
40.253 Unlawful detainer: Supplemental remedy
of summary eviction and exclusion of tenant for
default in payment of rent.
1. Except as otherwise provided in subsection 9, in
addition to the remedy provided in NRS 40.2512 and in
NRS 40.290 to 40.420, inclusive, when the tenant of
any dwelling, apartment, mobile home, recreational
vehicle or commercial premises with periodic rent
reserved by the month or any shorter period, is in
default in payment of the rent, the landlord or his
agent, unless otherwise agreed in writing, may serve
or have served a notice in writing, requiring in the
alternative the payment of the rent or the surrender
of the premises:
(a) At or before noon of the fifth full day
following the day of service; or
(b) If the landlord chooses not to proceed in the
manner set forth in paragraph (a) and the rent is
reserved by a period of 1 week or less and the tenancy
has not continued for more than 45 days, at or before
noon of the fourth full day following the day of
service. As used in this paragraph, "day of service"
means the day the landlord or his agent personally
delivers the notice to the tenant. If personal service
was not so delivered, the "day of service" means the
day the notice is delivered, after posting and mailing
pursuant to subsection 2, to the sheriff or constable
for service if the request for service is made before
noon. If the request for service by the sheriff or
constable is made after noon, the "day of service"
shall be deemed to be the day next following the day
that the request is made for service by the sheriff or
constable.
2. A landlord or his agent who serves a notice to a
tenant pursuant to paragraph (b) of subsection 1 shall
attempt to deliver the notice in person in the manner
set forth in paragraph (a) of subsection 1 of NRS
40.280. If the notice cannot be delivered in person,
the landlord or his agent:
(a) Shall post a copy of the notice in a conspicuous
place on the premises and mail the notice by overnight
mail; and
(b) After the notice has been posted and mailed, may
deliver the notice to the sheriff or constable for
service in the manner set forth in subsection 1 of NRS
40.280. The sheriff or constable shall not accept the
notice for service unless it is accompanied by written
evidence, signed by the tenant when he took possession
of the premises, that the landlord or his agent
informed the tenant of the provisions of this section
which set forth the lawful procedures for eviction
from a short-term tenancy. Upon acceptance, the
sheriff or constable shall serve the notice within 48
hours after the request for service was made by the
landlord or his agent.
3. A notice served pursuant to subsection 1 or 2
must:
(a) Identify the court that has jurisdiction over
the matter; and
(b) Advise the tenant of his right to contest the
matter by filing, within the time specified in
subsection 1 for the payment of the rent or surrender
of the premises, an affidavit with the court that has
jurisdiction over the matter stating that he has
tendered payment or is not in default in the payment
of the rent.
4. If the tenant files such an affidavit at or
before the time stated in the notice, the landlord or
his agent, after receipt of a file-stamped copy of the
affidavit which was filed, shall not provide for the
nonadmittance of the tenant to the premises by locking
or otherwise.
5. Upon noncompliance with the notice:
(a) The landlord or his agent may apply by affidavit
to the justice's court of the township in which the
dwelling, apartment, mobile home or commercial
premises are located or to the district court of the
county in which the dwelling, apartment, mobile home
or commercial premises are located, whichever has
jurisdiction over the matter. The court may thereupon
issue an order directing the sheriff or constable of
the county to remove the tenant within 24 hours after
receipt of the order. The affidavit provided for in
this paragraph must contain:
(1) The date the tenancy commenced.
(2) The amount of periodic rent reserved.
(3) The amounts of any cleaning, security or rent
deposits paid in advance, in excess of the first
month's rent, by the tenant.
(4) The date the rental payments became
delinquent.
(5) The length of time the tenant has remained in
possession without paying rent.
(6) The amount of rent claimed due and delinquent.
(7) A statement that the written notice was served
on the tenant in accordance with NRS 40.280.
(8) A copy of the written notice served on the
tenant.
(9) A copy of the signed written rental agreement,
if any.
(b) Except where the tenant has timely filed the
affidavit described in subsection 3 and a file-stamped
copy of it has been received by the landlord or his
agent, the landlord or his agent may, in a peaceable
manner, provide for the nonadmittance of the tenant to
the premises by locking or otherwise.
6. Upon the filing by the tenant of the affidavit
permitted in subsection 3 and the filing by the
landlord of the affidavit permitted by subsection 5,
the justice's court or the district court shall hold a
hearing, after service of notice of the hearing upon
the parties, to determine the truthfulness and
sufficiency of any affidavit or notice provided for in
this section. If the court determines that there is no
legal defense as to the alleged unlawful detainer and
the tenant is guilty of an unlawful detainer, the
court may issue a summary order for removal of the
tenant or an order providing for the nonadmittance of
the tenant pursuant to subsection 5. If the court
determines that there is a legal defense as to the
alleged unlawful detainer, the court shall refuse to
grant either party any relief, and, except as
otherwise provided in this subsection, shall require
that any further proceedings be conducted pursuant to
NRS 40.290 to 40.420, inclusive. The issuance of a
summary order for removal of the tenant does not
preclude an action by the tenant for any damages or
other relief to which he may be entitled. If the
alleged unlawful detainer was based upon subsection 5
of NRS 40.2514, the refusal by the court to grant
relief does not preclude the landlord thereafter from
pursuing an action for unlawful detainer in accordance
with NRS 40.251.
7. The tenant may, upon payment of the appropriate
fees relating to the filing and service of a motion,
file a motion with the court, on a form provided by
the clerk of the court, to dispute the amount of the
costs, if any, claimed by the landlord pursuant to NRS
118A.460 for the inventory, moving and storage of
personal property left on the premises. The motion
must be filed within 20 days after the summary order
for removal of the tenant or the abandonment of the
premises by the tenant, or within 20 days after:
(a) The tenant has vacated or been removed from the
premises; and
(b) A copy of those charges has been requested by or
provided to the tenant,
whichever is later.
8. Upon the filing of a motion pursuant to
subsection 7, the court shall schedule a hearing on
the motion. The hearing must be held within 10 days
after the filing of the motion. The court shall affix
the date of the hearing to the motion and order a copy
served upon the landlord by the sheriff, constable or
other process server. At the hearing, the court may:
(a) Determine the costs, if any, claimed by the
landlord pursuant to NRS 118A.460, and any
accumulating daily costs; and
(b) Order the release of the tenant's property upon
the payment of the charges determined to be due or if
no charges are determined to be due.
9. This section does not apply to the tenant of a
mobile home lot in a mobile home park or to the tenant
of a recreational vehicle lot in an area of a mobile
home park in this state other than an area designated
as a recreational vehicle lot pursuant to the
provisions of subsection 6 of NRS 40.215.
(Added to NRS by 1967, 195; A 1969, 263, 575; 1973,
1085; 1975, 1202; 1977, 418, 1346; 1979, 1398, 1879;
1985, 229; 1987, 1239; 1989, 1082, 1232; 1991, 113;
1995, 1851)
NEVADA CASES.
Termination of lease. In
action by lessor to terminate
lease, recover amount due from
lessee and appoint receiver to
take charge of leased premises
during pendency of litigation,
where lease provided that, upon
lessee's default, lessor could
reenter premises, take
possession of lessee's business
and declare lease to be
terminated or, if lessor elected
to file suit in equity, receiver
could be appointed to sell
business to pay existing claims,
it was error for trial court to
order receiver to sell remaining
term of lease with other assets
of business on ground that
lessor's request for receiver
was election of remedies which
required partial forfeiture of
lease and precluded him from
terminating remaining term of
lease. There is nothing
unreasonable or unconscionable
in permitting lessor to
terminate lease and seek
appointment of receiver to
conduct business while
termination of lease is being
litigated. Lynn v. Ingalls, 100
Nev. 115, 676 P.2d 797
(1984)
FEDERAL AND OTHER CASES.
Constitutionality of
prejudgment seizure of tenant's
property. Provisions of
former NRS 108.510 et seq.,
relating to liens of landlords
of rental housing, which
permitted prejudgment seizure of
tenant's property without notice
and hearing, were
unconstitutional denial of
procedural due process of law
regardless of notice and
opportunity for hearing afforded
in unlawful detainer proceedings
under NRS 40.215 et seq. (See
NRS 40.2512 and 40.253.) Adams
v. Sanson Inv. Co., 376 F. Supp.
61 (1974)
40.254 Unlawful detainer: Supplemental remedy
of summary eviction and exclusion of tenant from
certain types of property. Except as otherwise
provided by specific statute, in addition to the
remedy provided in NRS 40.251 and in NRS 40.290 to
40.420, inclusive, when the tenant of a dwelling unit
which is subject to the provisions of chapter 118A of
NRS, part of a low-rent housing program operated by a
public housing authority, a mobile home or a
recreational vehicle is guilty of an unlawful
detainer, the landlord is entitled to the summary
procedures provided in NRS 40.253 except that:
1. Written notice to surrender the premises must:
(a) Be given to the tenant in accordance with the
provisions of NRS 40.280;
(b) Advise the tenant of the court that has
jurisdiction over the matter; and
(c) Advise the tenant of his right to contest the
notice by filing within 5 days an affidavit with the
court that has jurisdiction over the matter that he is
not guilty of an unlawful detainer.
2. The affidavit of the landlord or his agent
submitted to the justice's court or the district court
must contain:
(a) The date when the tenancy commenced, the term of
the tenancy, and, if any, a copy of the rental
agreement.
(b) The date when the tenancy or rental agreement
allegedly terminated.
(c) The date when the tenant became subject to the
provisions of NRS 40.251 to 40.2516, inclusive,
together with any supporting facts.
(d) The date when the written notice was given, a
copy of the notice and a statement that notice was
served in accordance with NRS 40.280.
(e) A statement that the claim for relief was
authorized by law.
3. If the tenant is found guilty of unlawful
detainer as a result of his violation of any of the
provisions of NRS 453.011 to 453.552, inclusive,
except NRS 453.336, the landlord is entitled to be
awarded any reasonable attorney's fees incurred by the
landlord or his agent as a result of a hearing, if
any, held pursuant to subsection 6 of NRS 40.253
wherein the tenant contested the eviction.
(Added to NRS by 1985, 227; A 1989, 1084, 1234;
1991, 115; 1995, 1853)
NEVADA CASES.
Complaint which did not allege
fraud insufficient to warrant
arrest of defendant. Under
secs. 1, 2 and 9, ch. 46, Stats.
1865 (cf. NRS 40.220-40.252,
40.254 and 40.300), relating to
forcible entry and unlawful
detainer, complaint which did
not allege fraud on part of
defendant, either in making such
forcible entry or in holding
such possession by force, was
radically defective and wholly
insufficient to warrant arrest
of defendant under statute.
Strozzi v. Wines, 24 Nev. 389,
55 Pac. 828, 57 Pac. 832 (1899)
Prima facie showing
that landlord-tenant
relationship exists should not
preclude defendant from showing
other facts. Purpose of
unlawful detainer statute, RL º
5588 (cf. NRS 40.250-40.252 and
40.254), is to afford summary
remedy to landlords where true
relationship of landlord and
tenant existed. Such
relationship is foundation of
action, and prima facie showing
that relationship exists should
not preclude defendant from
showing other facts which would
establish nonexistence of such
relationship. Yori v. Phenix, 38
Nev. 277, 149 Pac. 180 (1915),
cited, Volpert v. Papagna, 83
Nev. 429, at 434, 433 P.2d 533
(1967)
Common law rule that
title cannot be placed in issue
in action for forcible entry
does not apply in action for
unlawful detainer. Action
for unlawful detainer, as
defined in RL º 5588 (cf. NRS
40.250-40.252 and 40.254), is
designed to afford to landlord
summary remedy for recovery of
leased premises and was unknown
to common law. It affords
different remedy than common law
action of forcible detainer
which is designed to keep peace,
and rule that title cannot be
placed in issue in action for
common law forcible entry does
not apply in action for unlawful
detainer, which can be
maintained only where landlord
and tenant relationship exists
or existed. Yori v. Phenix, 38
Nev. 277, 149 Pac. 180 (1915),
cited, Farnow v. Eighth Judicial
Dist. Court, 64 Nev. 109, at
121, 178 P.2d 371 (1947),
Gibby's, Inc. v. Aylett, 96 Nev.
678, at 680, 615 P.2d 949 (1980)
Defendant may introduce
evidence that lease constituted
mortgage. Action for
unlawful detainer, defined in RL
º 5588 (cf. NRS 40.250-40.252
and 40.254), can be maintained
only where landlord-tenant
relationship exists or existed,
and defendant in such action
should have been permitted to
introduce evidence showing that
deed given by him to plaintiff,
and lease given in return, did
not create landlord-tenant
relationship but constituted
security transaction in
connection with loan, and,
pursuant to RL º 5518 (cf. NRS
40.050), constituted mortgage
which could be enforced only by
action of foreclosure as
provided by RL º 5501 (cf. NRS
40.430). Yori v. Phenix, 38 Nev.
277, 149 Pac. 180 (1915), cited,
Hannig v. Conger, 54 Nev. 388,
at 394, 19 P.2d 769 (1933),
Flyge v. Flynn, 63 Nev. 201, at
224, 166 P.2d 539 (1946),
Volpert v. Papagna, 83 Nev. 429,
at 434, 433 P.2d 533 (1967)
Complaint must show
that detention is unlawful
within meaning of statute.
One seeking summary relief
in unlawful detainer action
pursuant to sec. 1, ch. 27,
Stats. 1917 (cf. NRS 40.250-
40.252 and 40.254), must bring
himself clearly within terms of
detainer statute, and his
complaint must show that
detention of premises is
unlawful within meaning of
statute. Roberts v. Second
Judicial Dist. Court, 43 Nev.
332, 185 Pac. 1067 (1920),
cited, Gasser v. Jet Craft,
Ltd., 87 Nev. 376, at 380, 387
P.2d 346 (1971)
40.255 Removal of person holding over after
3-day notice to quit; circumstances authorizing
removal.
1. Except as provided in subsection 2, in any of
the following cases, a person who holds over and
continues in possession of real property or a mobile
home after a 3-day written notice to quit has been
served upon him, and also upon any subtenant in actual
occupation of the premises, pursuant to NRS 40.280,
may be removed as prescribed in NRS 40.290 to 40.420,
inclusive:
(a) Where the property or mobile home has been sold
under an execution against him or a person under whom
he claims, and the title under the sale has been
perfected;
(b) Where the property or mobile home has been sold
upon the foreclosure of a mortgage, or under an
express power of sale contained therein, executed by
him or a person under whom he claims, and the title
under the sale has been perfected;
(c) Where the property or mobile home has been sold
under a power of sale granted by NRS 107.080 to the
trustee of a deed of trust executed by such person or
a person under whom he claims, and the title under
such sale has been perfected; or
(d) Where the property or mobile home has been sold
by him or a person under whom he claims, and the title
under the sale has been perfected.
2. This section does not apply to the tenant of a
mobile home lot in a mobile home park.
(Added to NRS by 1961, 412; A 1969, 263; 1979, 1880)
40.260 Tenant of agricultural lands may hold
over if not notified. In all cases of tenancy
upon agricultural land where the tenant has held over
and retained possession for more than 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 the 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 the year, and such holding over for the period
aforesaid shall be taken and construed as a consent on
the part of the tenant to hold for another year.
[1911 CPA º 647; RL º 5589; NCL º 9136]
40.270 Tenant has similar remedies against
subtenant. A tenant may take proceedings
similar to those prescribed in this chapter, to obtain
possession of the premises let to any under tenant, in
case of his unlawful detention of the premises
underlet to him.
[1911 CPA º 648; RL º 5590; NCL º 9137]
40.280 Service of notices to quit; proof
required before issuance of order to remove.
1. Except as otherwise provided in NRS 40.253, the
notices required by NRS 40.251 to 40.260, inclusive,
may be served:
(a) By delivering a copy to the tenant personally,
in the presence of a witness;
(b) If he is absent from his place of residence or
from his usual place of business, by leaving a copy
with a person of suitable age and discretion at either
place and mailing a copy to the tenant at his place of
residence or place of business; or
(c) If the place of residence or business cannot be
ascertained, or a person of suitable age or discretion
cannot be found there, by posting a copy in a
conspicuous place on the leased property, delivering a
copy to a person there residing, if the person can be
found, and mailing a copy to the tenant at the place
where the leased property is situated.
2. Service upon a subtenant may be made in the same
manner as provided in subsection 1.
3. Before an order to remove a tenant is issued
pursuant to subsection 6 of NRS 40.253, a landlord
shall file with the court a proof of service of any
notice required by that section. Except as otherwise
provided in subsection 4, this proof must consist of:
(a) A statement, signed by the tenant and a witness,
acknowledging that the tenant received the notice on a
specified date;
(b) A certificate of mailing issued by the United
States Postal Service; or
(c) The endorsement of a sheriff, constable or other
process server stating the time and manner of service.
4. If service of the notice was not delivered in
person to a tenant whose rent is reserved by a period
of 1 week or less and the tenancy has not continued
for more than 45 days, proof of service must include:
(a) A certificate of mailing issued by the United
States Postal Service or by a private postal service
to the landlord or his agent; or
(b) The endorsement of a sheriff or constable
stating the:
(1) Time and date the request for service was made
by the landlord or his agent;
(2) Time, date and manner of the service; and
(3) Fees paid for the service.
[1911 CPA º 649; RL º 5591; NCL º 9138]--(NRS A
1961, 413; 1967, 196; 1985, 231, 1418; 1987, 701;
1995, 1854)
40.290 Parties defendant; persons bound by
judgment. No person other than the tenant of
the premises and the subtenant, if there be one, in
actual occupation of the premises when the action is
commenced, need be made parties defendant in the
proceeding, nor shall any proceeding abate nor the
plaintiff be nonsuited for the nonjoinder of any
person who might have been made a party defendant; but
when it appears that any of the parties served with
process or appearing in the proceeding is guilty of
the offense charged, judgment must be rendered against
him. In case a person has become subtenant of the
premises in controversy after the service of any
notice in this chapter provided for, the fact that
such notice was not served on such subtenant shall
constitute no defense to the action. All persons who
enter under the tenant, after the commencement of the
action hereunder, shall be bound by the judgment the
same as if they had been made parties to the action.
[1911 CPA º 650; RL º 5592; NCL º 9139]
NEVADA CASES.
Judgment upon confession
cannot be entered.
Judgment upon confession
cannot be entered in justice's
court in action for forcible
entry and unlawful detainer.
Paul v. Armstrong, 1 Nev. 82
(1865)
Obligation of assignee
of lease not excused, justified
or avoided by obligation of
assignor for rent.
Assignor of lease was not
indispensable party defendant in
unlawful detainer action,
because only tenant in
possession and subtenant, if
any, are so designated by NRS
40.290 and, even though assignor
may be obligated for rent as
surety, obligation of assignee
is not thereby excused,
justified or avoided. Volpert v.
Papagna, 83 Nev. 429, 433 P.2d
533 (1967)
40.300 Contents of complaint; issuance and
service of summons; temporary writ of restitution;
notice, hearing and bond.
1. The plaintiff in his complaint, which shall be
in writing, must set forth the facts on which he seeks
to recover, and describe the premises with reasonable
certainty and may set forth therein any circumstances
of fraud, force or violence which may have accompanied
the alleged forcible entry, or forcible or unlawful
detainer, and claim damages therefor, or compensation
for the occupation of the premises or both. In case
the unlawful detainer charged be after default in the
payment of rent, the complaint must state the amount
of such rent.
2. The summons shall be issued and served as in
other cases, but the court, judge or justice of the
peace may shorten the time within which the defendant
shall be required to appear and defend the action, in
which case the officer or person serving the summons
shall change the prescribed form thereof to conform to
the time of service as ordered; but where publication
is necessary the court shall direct publication for a
period of not less than 1 week.
3. At any time after the filing of the complaint
and issuance of summons, the court, upon application
therefor, may issue a temporary writ of restitution;
provided:
(a) That the temporary writ of restitution shall not
issue ex parte but only after the issuance and service
of an order to show cause why a temporary writ of
restitution shall not be issued and after the
defendant has been given an opportunity to oppose the
issuance of the temporary writ of restitution.
(b) That the temporary writ of restitution shall not
issue until the court has had an opportunity to
ascertain the facts sufficiently to enable it to
estimate the probable loss to the defendant and fix
the amount of a bond to indemnify the party or parties
against whom the temporary writ may be issued.
(c) That the temporary writ of restitution shall not
issue until there has been filed with the approval of
the court a good and sufficient bond of
indemnification in the amount fixed by the court.
[1911 CPA º 651; A 1939, 171; 1951, 251]
REVISER'S NOTE.
See paragraph (b) of
subsection 3. The 1951 amendment
(Stats. 1951, p. 251) apparently
was incomplete, reading: "to
indemnify the party or parties
against the temporary writ may
be issued." The reviser added
the word "whom," making the
phrase read: "to indemnify the
party or parties against whom
the temporary writ may be
issued."
NEVADA CASES.
Complaint which did not allege
fraud insufficient to warrant
arrest of defendant. Under
secs. 1, 2 and 9, ch. 46, Stats.
1865 (cf. NRS 40.220-40.252,
40.254 and 40.300), relating to
forcible entry and unlawful
detainer, complaint which did
not allege fraud on part of
defendant, either in making such
forcible entry or in holding
such possession by force, was
radically defective and wholly
insufficient to warrant arrest
of defendant under statute.
Strozzi v. Wines, 24 Nev. 389,
55 Pac. 828, 57 Pac. 832 (1899)
Provision for temporary
writ of restitution intended to
be summary. Provisions of
NCL º 9132 et seq. (cf. NRS
40.220 et seq.) governing
actions of forcible entry and
detainer are often summary in
character, and provision of 1931
NCL º 9140 (cf. NRS 40.300) for
temporary writ of restitution
"upon application" was likewise
intended to be summary and did
not contemplate notice of
application. Farnow v. Eighth
Judicial Dist. Court, 64 Nev.
109, 178 P.2d 371 (1947),
distinguished, Whitney v. Second
Judicial Dist. Court, 68 Nev.
176, at 180, 227 P.2d 960 (1951)
Application for
temporary writ of restitution
not a motion under court rule.
In action of forcible
entry and detainer under 1931
NCL º 9140 (cf. NRS 40.300),
which authorized issuance of
temporary writ of restitution
upon application, application
was for writ and not for order,
and application was not in
reality motion under NCL º 8909
(cf. N.R.C.P. 7(b)). Farnow v.
Eighth Judicial Dist. Court, 64
Nev. 109, 178 P.2d 371 (1947)
40.310 Issue of fact to be tried by jury if
proper demand made. Whenever an issue of fact
is presented by the pleadings, it shall be tried by a
jury, if proper demand is made pursuant to the Nevada
Rules of Civil Procedure or the Nevada Justices'
Courts' Rules of Civil Procedure.
[1911 CPA º 652; RL º 5594; NCL º 9141]--(NRS A
1975, 1203)
40.320 Proof required of plaintiff and
defendant on trial.
1. 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 possession at the
time of the forcible detainer.
2. 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 1 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.
[1911 CPA º 653; RL º 5595; NCL º 9142]
NEVADA CASES.
Plaintiff must allege and
prove forcible entry and
detention by defendant or
forcibly held possession by
defendant after peaceable entry.
Under B º 50 (cf. NRS
40.320), it is necessary to
allege and prove, in action for
forcible entry and detainer,
that plaintiff was in actual,
peaceable possession of premises
and that defendant forcibly
entered thereon and forcibly
detained same, or that defendant
forcibly held possession which
plaintiff was entitled to enjoy,
although entry was peaceable.
Lachman v. Barnett, 18 Nev. 269,
3 Pac. 38 (1884)
40.330 Amendment of complaint to conform to
proof; continuance. When, upon the trial of any
proceeding under NRS 40.220 to 40.420, inclusive, it
appears from the evidence that the defendant has been
guilty of either a forcible entry or 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 must be permitted upon
account of such amendment, unless the defendant, by
affidavit filed, shows to the satisfaction of the
court good cause therefor.
[1911 CPA º 654; RL º 5596; NCL º 9143]
40.340 Adjournments. The court or
justice of the peace may for good cause shown adjourn
the trial of any cause under NRS 40.220 to 40.420,
inclusive, not exceeding 5 days; and when the
defendant, his agent or attorney, shall make oath that
he cannot safely proceed to trial for want of some
material witness, naming him, stating the evidence
that he expects to obtain, showing that he has used
due diligence to obtain such witness and believes that
if an adjournment be allowed he will be able to
procure the attendance of such witness, or his
deposition, in time to produce the same upon the
trial, in which case, if such person or persons will
give bond, with one or more sufficient sureties,
conditioned to pay the complainant for all rent that
may accrue during the pending of such suit, and all
costs and damages consequent upon such adjournment,
the court or justice of the peace shall adjourn the
cause for such reasonable time as may appear
necessary, not exceeding 30 days.
[1911 CPA º 655; RL º 5597; NCL º 9144]
40.350 Trial not to be adjourned when
complainant admits evidence in affidavit would be
given. If the complainant admit that the
evidence stated in the affidavit mentioned in NRS
40.340 would be given by such witness, and agree that
it be considered as actually given on the trial, or
offered and overruled as improper, the trial shall not
be adjourned.
[1911 CPA º 656; RL º 5598; NCL º 9145]
40.360 Judgment; damages; execution and
enforcement.
1. Judgment. 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 unlawful detainer after neglect or
failure to perform any condition or covenant 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.
2. Damages. 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, and any amount found due the plaintiff by
reason of waste of the premises by the defendant
during the tenancy, 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 rent
and for three times the amount of the damages thus
assessed.
3. Execution and enforcement. When the proceeding
is for an unlawful detainer after default in the
payment of the rent, 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 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 of the judgment and
costs, and thereupon the judgment shall be satisfied
and the tenant be restored to his estate; but, if
payment, as herein provided, be not made within the 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.
[1911 CPA º 657; RL º 5599; NCL º 9146]
NEVADA CASES.
Award of treble damages not
authorized under former statute.
Under secs. 648, 650 and
651, ch. 103, Stats. 1861 (cf.
NRS 40.360), court is not
authorized to award judgment of
treble damages against tenant
holding over after failure by
tenant to pay rent and demand by
landlord to quit or pay rent.
Hoopes v. Meyer, 1 Nev. 433
(1865), cited, Regan v. King, 39
Nev. 216, at 223, 156 Pac. 688
(1916)
Rents not among damages
which may be trebled.
Rents are not among items
of damage which may be trebled
in action under RL º 5599 (cf.
NRS 40.360) for rents and treble
damages. Award of treble rents
as damages to plaintiff by
justice's court was not properly
before appellate court on
certiorari, but appellate court
recommended that justice's court
of its own motion or otherwise
correct or set aside its
judgment. Regan v. King, 39 Nev.
216, 156 Pac. 688 (1916), cited,
Farnow v. Las Vegas Aerie No.
1213, F.O.E., 65 Nev. 80, at
108, 188 P.2d 615 (1948),
dissenting opinion.
Immediate forfeiture
correct under terms of lease.
In unlawful detainer
action after default in rent
payment where lease specifically
provided for reentry and
possession by lessor upon breach
of condition, summary judgment
declaring immediate forfeiture
was correct under authority of
NRS 40.360 without allowance for
5-day redemption period, because
lease by its terms had expired.
Volpert v. Papagna, 83 Nev. 429,
433 P.2d 533 (1967)
Requirement that notice
be in alternative was
jurisdictional and court could
not enter judgment for rent in
absence of judgment for
restitution. In unlawful
detainer action, where notice to
quit did not demand payment of
rent, either in alternative or
at all, trial court did not err
in failing to determine amount
of rent owing, because
requirement of NRS 40.2512 that
notice be in alternative was
jurisdictional, and, under NRS
40.360, court could not enter
judgment for rent in absence of
judgment for restitution. Claim
for rent was incident to
unlawful detainer, and failed
when main object of action
failed. Gasser v. Jet Craft,
Ltd., 87 Nev. 376, 487 P.2d 346
(1971), cited, American Fence,
Inc. v. Wham, 93 Nev. 26, at 27,
559 P.2d 824 (1977), American
Fence, Inc. v. Wham, 95 Nev.
788, at 791, 603 P.2d 274
(1979), Gibby's, Inc. v. Aylett,
96 Nev. 678, at 681, 615 P.2d
949 (1980)
Ordinary action for
damages is appropriate remedy
for breach of lease covenants
where no unlawful detainer is
found. Where lessors
brought action for unlawful
detainer but district court
found evidence insufficient to
warrant granting unlawful
detainer and restitution of the
property, district court was
without jurisdiction to award
sanctions for hardship caused by
lessees' minor infractions of
lease covenants (see NRS
40.360). Appropriate remedy for
breach of lease covenants when
no unlawful detainer is found is
ordinary civil action for
damages. Gibby's, Inc. v.
Aylett, 96 Nev. 678, 615 P.2d
949 (1980)
Provision for treble
damages did not apply to
tenant's counterclaim for
damages. In action brought
by landlord against tenant for
unlawful detainer, provision in
NRS 40.360 for treble damages in
cases of forcible or unlawful
detainer did not apply to
tenant's counterclaim for
damages for "unlawful eviction"
by landlord on ground that
landlord had unlawfully changed
locks. Where tenant sought
damages only and did not seek
restitution of premises, action
was not detainer action.
McKinnon v. Cantarutti-
Althuizen, 98 Nev. 72, 639 P.2d
563 (1982)
40.370 Verification of complaint and
answer. The complaint and answer must be
verified.
[1911 CPA º 658; RL º 5600; NCL º 9147]
NEVADA CASES.
Process will be void if there
is defect of proof as to
essential point. Where
statute requires certain facts
to be proved to warrant issuing
of process in court of special
and limited jurisdiction, if
there be defect of proof as to
essential point, process will be
void. Paul v. Armstrong, 1 Nev.
82 (1865), cited, Phillips v.
Snowden Placer Co., 40 Nev. 66,
at 87, 160 Pac. 786 (1916)
Failure to verify
complaint waived by filing
answer. Failure to verify
complaint in unlawful detainer
action as required by NRS 40.370
is waived by filing answer.
Musso v. Triplett, 78 Nev. 355,
372 P.2d 687 (1962)
40.380 Provisions governing appeals.
Either party may, within 10 days, appeal from the
judgment rendered. But an appeal by the defendant
shall not stay the execution of the judgment, unless,
within the 10 days, he shall execute and file with the
court or justice his undertaking to the plaintiff,
with two or more sureties, in an amount to be fixed by
the court or justice, but which shall not be less than
twice the amount of the judgment and costs, to the
effect that, if the judgment appealed from be affirmed
or the appeal be dismissed, the appellant will pay the
judgment and the cost of appeal, the value of the use
and occupation of the property, and damages justly
accruing to the plaintiff during the pendency of the
appeal. Upon taking the appeal and filing the
undertaking, all further proceedings in the case shall
be stayed.
[1911 CPA º 659; RL º 5601; NCL º 9148]
NEVADA CASES.
Where complaint did not show
that landlord had given
unequivocal notice, action was
not clearly for unlawful
detainer and statutory period
for appeals generally applied.
In action in justice's
court for possession of premises
held in month-to-month tenancy
and for damages, where complaint
did not show that landlord had
given tenant unequivocal notice
to quit pursuant to sec. 1, ch.
27, Stats. 1917 (cf. NRS
40.251), action was not clearly
for unlawful detainer, and
district court had jurisdiction
to proceed with action where
appeal was taken within 30-day
statutory period generally
allowed for appeals from
justice's court, but not within
10-day period provided by RL º
5601 (cf. NRS 40.380) in
unlawful detainer actions.
Mandamus issued requiring
district court to proceed.
Roberts v. Second Judicial Dist.
Court, 43 Nev. 332, 185 Pac.
1067 (1920), cited, State ex
rel. Weber v. McFadden, 46 Nev.
1, at 7, 205 Pac. 594 (1922),
distinguished, Beyer v. Second
Judicial Dist. Court, 67 Nev.
480, at 488, 221 P.2d 1024
(1950)
Appeal from money
judgment on cross-complaint not
governed by former statute.
On appeal from judgment
for defendant in action of
unlawful detainer, where
defendant was awarded money
judgment on cross-complaint,
provisions of NCL º 9148 (cf.
NRS 40.380) requiring appeal to
be taken within 10 days applied
to unlawful detainer aspects of
action, but appeal from money
judgment was governed by
provisions of civil practice act
allowing 6 months for appeal,
because there were not same
reasons for haste and summary
action. West v. Edwards, 62 Nev.
1, 134 P.2d 932 (1943), cited,
Aikins v. Andrews, 91 Nev. 746,
at 748, 542 P.2d 734 (1975),
Gibby's, Inc. v. Aylett, 96 Nev.
678, at 680, 615 P.2d 949 (1980)
40.390 Appellate court not to dismiss or
quash proceedings for want of form. In all
cases of appeal under NRS 40.220 to 40.420, inclusive,
the appellate court shall not dismiss or quash the
proceedings for want of form, provided the proceedings
have been conducted substantially according to the
provisions of NRS 40.220 to 40.420, inclusive; and
amendments to the complaint, answer or summons, in
matters of form only, may be allowed by the court at
any time before final judgment upon such terms as may
be just; and all matters of excuse, justification or
avoidance of the allegations in the complaint may be
given in evidence under the answer.
[1911 CPA º 660; RL º 5602; NCL º 9149]
NEVADA CASES.
Trial court required to
determine whether affirmative
defenses had been established
before granting summary
judgment. In unlawful
detainer action where certain
affirmative defenses were
raised, trial court was required
under NRS 40.390 to determine
whether or not there had been
established thereby excuse,
justification or avoidance of
obligation to pay rent before it
could grant motion for summary
judgment. Volpert v. Papagna, 83
Nev. 429, 433 P.2d 533 (1967)
Notice to pay or quit
which contained reservation of
right to change amount of rent
due was legally sufficient.
In unlawful detainer
action, where notice to pay or
quit, which was required by NRS
40.2512, contained reservation
of right to change amount of
rent shown as due, notice was
legally sufficient because
statute does not require
specification of amount, and
notice otherwise met substantial
compliance test provided in NRS
40.390. Volpert v. Papagna, 83
Nev. 429, 433 P.2d 533 (1967),
cited, Gasser v. Jet Craft,
Ltd., 87 Nev. 376, at 380, 387
P.2d 346 (1971)
40.400 Rules of practice. The
provisions of NRS, Nevada Rules of Civil Procedure and
Nevada Rules of Appellate Procedure relative to civil
actions, appeals and new trials, so far as they are
not inconsistent with the provisions of NRS 40.220 to
40.420, inclusive, apply to the proceedings mentioned
in those sections.
[1911 CPA º 661; RL º 5603; NCL º 9150]
REVISER'S NOTE.
Reference to Nevada
Rules of Civil Procedure was
added. Reference to "Nevada
Rules of Appellate Procedure"
was added as result of adoption
of appellate rules effective
July 1, 1973.
NEVADA CASES.
Defendant should have been
permitted to show relationship
of parties as mortgagee and
mortgagor. In action for
restitution of real property for
unlawful detainer, defendant
should have been permitted to
show that relationship of
parties was mortgagee and
mortgagor rather than having to
bring separate equitable action
to enjoin action for unlawful
detainer, because Nev. Art. 6, º
14, provides that law and equity
may be administered in same
action and RL º 5603 (cf. NRS
40.400) provides that procedure
in civil actions, so far as
consistent, applies in actions
for forcible entry and unlawful
detainer. Yori v. Phenix, 38
Nev. 277, 149 Pac. 180 (1915)
40.420 Form of writ of restitution;
execution.
1. The writ of restitution issued by a justice of
the peace must be substantially in the following form:
The State of Nevada to the sheriff or constable of the
county of ................, greeting: Whereas, A.B.,
of the county of ................, at a court of
inquiry of an unlawful holding over of (lands)
(tenements) (a mobile home), and other possessions,
held at my office (stating the place), in the county
aforesaid, on the ........ day of .............., A.D.
....., before me, a justice of the peace for the
county aforesaid, by the consideration of the court,
has recovered judgment against C.D., to have
restitution of (here describe the premises as in the
complaint). You are therefore commanded, that taking
with you the force of the county, if necessary, you
cause C.D. to be immediately removed from the
premises, and A.B. to have peaceable restitution of
the premises. You are also commanded that of the goods
and chattels of C.D., within said county, which are
not exempt from execution, you cause to be made the
sum of ........ dollars for the plaintiff, together
with the costs of suit endorsed hereon, and make
return of this writ within 30 days after this date.
Given under my hand, this ........ day of ........,
A.D. ..... E.F., justice of the peace.
2. The sheriff or constable shall execute the writ
in the same manner as required by the provisions of
chapter 21 of NRS for writs of execution.
[1911 CPA º 663; RL º 5605; NCL º 9152]--(NRS A
1969, 264; 1989, 1144)
NEVADA CASES.
Appellate court may order
rerestitution. Where
justice's court has entered
summary judgment under unlawful
detainer statute, appellate
court, hearing case on
certiorari, may order
rerestitution. Paul v.
Armstrong, 1 Nev. 82 (1865)
40.425 Notice of execution on writ of
restitution.
1. Execution on the writ of restitution may occur
only if the sheriff serves the judgment debtor with
notice of the execution and a copy of the writ in the
manner described in NRS 21.076. The notice must
describe the types of property exempt from execution
and explain the procedure for claiming those
exemptions. The clerk of the court shall attach the
notice to the writ at the time the writ is issued.
2. The notice required pursuant to subsection 1
must be in the form and served in the manner provided
for execution on judgments pursuant to NRS 21.075 and
21.076.
(Added to NRS by 1989, 1144)