Definition
Entry and detainer is a composite legal concept touching two related but distinct problems: the act of taking or holding possession of real property, and the legal mechanisms — civil or criminal — that respond to wrongful possession or continued occupation.
1. Forcible entry and detainer (the primary modern usage): A summary legal proceeding allowing a party with a superior right to possession of real property to recover that possession from one who holds it unlawfully. Most commonly encountered in landlord-tenant law, where a landlord seeks to evict a tenant who has held over past the lease term, failed to pay rent, or otherwise forfeited the right to remain. The proceeding is intentionally expedited — courts restrict the inquiry to the narrow question of possession, not title.
2. Detainer alone (historical and carceral usage): A formal instrument or writ directing a jailer to continue holding a prisoner in custody, typically on account of a second charge, judgment, or hold lodged by another authority while the prisoner is already confined. This usage is now largely superseded in practice, though the word survives in the phrase "immigration detainer," where federal authorities request that local facilities hold an individual beyond the scheduled release date.
3. Entry (property law sense): The act of going onto land, either lawfully (as in the exercise of a right of entry following a breach of a condition subsequent) or unlawfully (as in forcible entry). At common law, the right of entry was a prerequisite to bringing certain real actions, and the rules governing lawful versus unlawful entry had significant procedural consequences.
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Common Confusion
Entry and detainer, forcible entry and detainer, unlawful detainer, and summary possession are related but not always interchangeable. Unlawful detainer typically refers to the tenant's wrongful holding-over; forcible entry and detainer encompasses both the unlawful entry onto premises and the subsequent refusal to vacate. Some jurisdictions use one label to cover what others split into two proceedings. Researchers working across jurisdictions should not assume identical scope when they encounter these terms. The detainer writ described by Bouvier — a prison hold instrument — is a different animal entirely from the landlord-tenant detainer and should not be conflated with it.
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Why It Matters in Research
This term rewards careful attention to context. A researcher encountering "detainer" in a nineteenth-century source is likely reading about prison custody holds; the same word in a twentieth- or twenty-first-century property law context almost certainly refers to a summary eviction proceeding. The two meanings share etymology but little else procedurally.
For property law researchers, forcible entry and detainer proceedings are heavily statutory and vary considerably by jurisdiction. Historical materials from English common law and early American practice will reflect a world where forcible entry was a misdemeanor as well as a basis for civil recovery — a dual character that has faded but not entirely disappeared. Researchers examining early American landlord-tenant disputes should expect to find forcible entry and detainer treated partly as a peace-keeping mechanism (preventing self-help violence over land) rather than purely as a landlord's remedy.
The connection to right of entry matters for future-interests research. A grantor's right of entry for condition broken — sometimes called a power of termination — does not automatically transfer title; the holder must make entry. Confusing the right of entry with automatic reverter is a persistent analytical error. Law Mind's property_5 encyclopedia entry addresses this distinction directly.
For criminal law and detention researchers, the Bouverian detainer — a prison hold — bridges into modern discussions of immigration detainers, interstate detainer agreements (such as the Interstate Agreement on Detainers, a compact adopted by most U.S. states), and Sixth Amendment speedy-trial concerns triggered when a detainer delays a prisoner's access to trial on a pending charge.
Corpus researchers should be alert to the fact that early digests and case reporters often index forcible entry and detainer under "F" rather than "E," and unlawful detainer under "U." Inconsistent indexing means a single proceeding may appear under multiple headings depending on the digest's vintage and jurisdiction.
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Historical Dictionary Support
Bouvier's treatment of detainer is narrow and oriented toward the prison-hold instrument, defining it as a writ authorizing a jailer to keep a named person in custody. Bouvier notes the writ could be lodged against a person already confined "on what account soever he is there" — meaning the hold could be for a completely separate matter from the original confinement. Bouvier also flags that this writ was superseded in England by 1 & 2 Vict. c. 110 (1838), which reformed the law of arrest and imprisonment for debt.
What Bouvier does not cover — and where researchers must look to other sources — is the landlord-tenant dimension of detainer and the American statutory development of forcible entry and detainer as a summary civil proceeding. By the time American practice had fully developed these proceedings in the nineteenth century, they were creatures of state statute, and general-purpose dictionaries of the Bouvier era capture only part of the picture. Researchers relying solely on Bouvier for this term will miss the dominant modern meaning.
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Jurisdictional Note
Forcible entry and detainer proceedings are defined and governed by state statute. The elements, timelines, available defenses, and even the name of the proceeding differ significantly across jurisdictions. Some states denominate the action "unlawful detainer"; others use "summary possession" or "dispossessory." Researchers should identify the controlling state statute before applying any general definition.
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Encyclopedia Cross-Reference
The Law Mind Property Law Encyclopedia — Landlord-Tenant: Eviction: Summary Proceedings and Unlawful Detainer (property_28)
The Law Mind Property Law Encyclopedia — Future Interests: Reversion, Possibility of Reverter, Right of Entry (property_5)
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