How to Evict a Tenant in California
In order for a Landlord to begin the eviction process, California law requires all persons residing in the property be served with a notice. The most common types of notices are discussed below. If preparation or service of the notice is done incorrectly or not at all and the tenant raises it as a defense, the Court will dismiss the Landlord's complaint due to a technical defect and the tenant will prevail at Court.
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Preparing and serving the notice
The 3-Day Notice To Pay Rent Or Quit
This notice is used when the tenant has failed to pay the full rent due. All tenants named in the rental agreement must be listed on the notice as well as the names of all other occupants, if known. The complete property address and county must be on the notice including the apartment number of the unit if applicable. The exact amount of rent must be demanded in the notice. This amount CANNOT include any additional charges for late charges, interest or and other penalties. If any charges other than rent are included on the 3-Day Notice to Pay Rent or Quit, California case law holds that the notice is defective and the Landlords case will be dismissed. Be sure to date and sign the notice and fill out a proof of service indicating the date and method of service.
The 30-Day Notice
The 30-day notice can only be used to terminate a month-to-month tenancy of less than one year. It cannot be used to terminate a fixed term lease agreement. Remember that the Landlord must not accept any rent payments to cover any period of time after the expiration of the notice date. If the tenant pays rent to cover a period of time after the expiration of the 30 days, you must return it immediately via certified mail to avoid a waiver of the 30-day notice.
Landlords should not to give any reason at all for the termination other than the fact that the rental agreement permits either party to terminate the tenancy with 30 days' notice. Stating any other reason on the notice only opens the Landlord up to a retaliatory eviction or discrimination defense by the tenant.
The 60-Day Notice
The 60-day notice can only be used to terminate a month-to-month tenancy of a year or more. It cannot be used to terminate a fixed term lease agreement. Remember that the Landlord must not accept any rent payments to cover any period of time after the expiration of the notice date. If the tenant pays rent to cover a period of time after the expiration of the 30 days, you must return it immediately via certified mail to avoid a waiver of the 30-day notice.
The 90-Day Notice
If the tenant lives in federal or state subsidized housing, the landlord is to give the tenant 90 days' written notice of termination and is to explain the reason for ending the arrangement.
Please note that if the tenant wishes to terminate the tenancy, the tenant only needs to serve the landlord with a 30-Day Notice.
The 3-Day Notice to Cure Breach of Covenant or Quit
This type of notice is used when the tenant has breached some term of the rental agreement other than non-payment of rent. For example, the no pets clause, subletting without Landlord's consent, or not paying late fees. The notice basically gives the tenant 3 full days to correct the violation or move out of the premises. Tenants will normally contest notices of this type in court so it is important that the Landlord have witnesses, photographs and other evidence to prove to the court that the breach did in fact occur.
In a situation where there is a pet or constant late payments, it is better to simply serve a 30 or 60 day notice to terminate the tenancy so that the tenant has additional time to vacate. This reduces the chances that the case will be contested at court.
The 3-Day Notice to Quit for committing a Legal Nuisance
This notice is similar to the previous notice but is used when the tenant is engaging in criminal activity or other acts that are harmful to other occupants of the property, thereby constituting a legal nuisance. Such acts include illegal drug activity, prostitution, and in some cases gang activity. Code of Civil Procedure, Section 1161 provides the legal basis whereby a landlord can serve a 3 Day Notice to Quit on a tenant who "...illegally sells a controlled substance upon the premises or uses the premises to further that purpose...". Again, the Landlord is advised to have independent witnesses, police officer testimony and other evidence to sustain the Landlord's burden of proof should the tenant contest the matter at trial.