Tag Archives: Tenant Eviction

For tenants who shirk lease terms: mediation or unlawful detainer?

Mediation or unlawful detainer

Sometimes a tenant will refuse to vacate premises even though his lease is up or he’s violated the terms of the lease agreement. In California the landlord may then file a three-day eviction notice telling the renter to get out.

If the tenant refuses, the landlord can resort to filing in court what is called an unlawful detainer that is a lawsuit and tells the tenant to get his property and his person off the premises. The landlord also tries to convince a judge to issue an order instructing the Sheriff to lock out the tenant by court order and a money judgment telling the tenant to pay the money owes. Often, this will include attorney’s fees and court costs if your rental contract has a provision allowing the prevailing party to recover attorney’s fees against the losing party.

All of this takes a lot of time and resources, filing court papers, gathering evidence and witnesses, going to court for a hearing or hearings.

One way to avoid some of the hassle is to go with a mediator instead of an filing unlawful detainer. Some mediators work for free. And their settlement decisions are confidential, unlike unlawful detainer proceedings in court. In court, the hearings are open to the public, and transcripts and judgments become matters of public record.

Landlords can go before mediators with tenants to try to resolve the problems before initiating legal action in a court of law. A mediator is a neutral third party that tries to help people come to a mutual agreement about the property. Both sides can tell their side of the story, sometimes separately, and the mediator’s goal is to reach an equitable decision.

The Santa Clara Superior Court has a good video on unlawful detainer mediation proceedings here.

One of the mediators in the video says: “In unlawful detainer cases, parties are able to come to a resolution as to extended living arrangements and/or departure conditions. You might be able to preserve your relationship.”

Another mediator says, “The landlord may be able to avoid retaliatory damage to property before or during eviction.”

Still another says: “Mediation allows parties to discuss other conditions of tenancy, such as disputes concerning damage, security deposits or rents due. A tenant’s credit record may be protected.”

Mediated agreements are enforceable by law, just as if a judge had upheld an unlawful detainer claim. Mediation can resolve amounts of money owed and how they will be paid, such as in monthly payments.

In some cases a landlord does not need to file 3-day, 30-day or 60-day eviction notices. Check out this article to learn the different reasons for filing different notices. The cases where a notice is not required include when a tenant’s lease is up, a tenant moves out, a tenant works for you and doesn’t pay rent, or you accept a tenant’s notice to end the lease.

The Santa Clara County Superior Court explains all these cases in great detail.

The court’s article gives an explanation the filing of a notice in the case of a tenant moving out:

“This only works if the rent is at least 14 days late and you think the tenant has left.

“The notice:

  • Has to be in writing.
  • The title has to say ‘Notice of Belief of Abandonment.’
  • Has to say the name of the tenants.
  • Has to say the address you’re talking about.
  • Has to say the date the lease ends. This date can’t be less than 15 days after personal service, or 18 days you served the tenant by mail.
  • You have to sign and date the notice.”

There are different kinds of notices. The court’s Web page says many tenants are late with rent, and you may want to wait a bit to see if they pay. Of course, you should include in the terms of the lease a fee if the rent is paid a certain amount of time late, such as 10 or 15 days. This fee cannot be punitive, by California law, but you can recover any costs you incur because the rent is late.

You can file a Three-day Notice to Quit or Pay Rent, and the notice must have that wording at the top of the page. The notice must be in writing, have the name of the tenant, the address and the amount of rent overdue. It has to say why the rent is due and give the dates it was due. The notice gives the tenant notice that he has three days to pay or forfeit the lease and move out. Sign and date the notice.

The Superior Court’s article says the notice must be worded carefully and gives some examples of when it would be invalid:

“The notice won’t be valid if you:

  • Don’t say how much money is due.
  • Ask for more money than what is due.
  • Ask for rent that was due more than 1 year ago.
  • Ask for something that’s not rent. This can be late charges, interest, utilities, property taxes, or damages.
  • Tell the tenant to ‘pay rent and quit’ (instead of ‘pay rent or quit’), or
  • If you don’t let the tenant chose to forfeit the lease. This is called ‘election of forfeiture.’”

There is also a Three-Day Notice to Perform Covenants or Quit, which is executed when a tenant has broken a term of the lease but can fix the problem. The court’s article says this is more for commercial leases and states: “For example, a tenant might use the property to do something that’s not allowed, change the property or refuse to keep up or fix the property. Or, a tenant might not pay late fees or overdue rent.”

See the court’s article for how to write such a notice.

The Three-Day Notice to Quit comes into effect when the tenant: “1) Assigned, sublet, or committed waste in the property, breaking the lease agreement, 2) Kept or allowed a ‘nuisance’ on the property, or 3) Used the property to do something illegal (like selling drugs).”

You can spare yourself the hassle of studying California eviction laws and finding out how to execute the eviction process by hiring an experienced law firm to handle the job at a reasonable price.

Express Evictions can do all the paperwork and any necessary court filings and paying of fees and process servers for a low price. (See our FAQ for what all is covered.) Given how much time and hassle an eviction can entail, hiring our firm is a great deal. Landlords can just hand the case off to us and kick back with a sense of relief that they won’t have to spend hours on the phone and at the courthouse to get a freeloading or destructive tenant off the property.

For help with mediation or an unlawful detainer, contact us today.

Some Strict Eviction Laws for Tenant in California

You have rented your property to a tenant in the State of California, and you now wish to terminate the tenancy and rental contract, either for non-payment or simply because you want to move your children into the property. It’s your property, so it should be simple…shouldn’t it? In California it is not as simple as one might think. The eviction of a tenant in California is sometimes a long and arduous process with many steps. Following are the basic steps for California Tenant Eviction, not taking into account local and municipal rent control laws and statutes. Read on to learn and understand these strict eviction laws.

Grounds for a Tenant Eviction in California

In the State of California you can evict a tenant for certain reasons, or in non-rent controlled cities for no reason at all, simply because you have a month to month tenancy and you want your property back. You can, evict a tenant for failing to pay the rent timely. You can evict your tenant in California for breaching a covenant of your rental agreement, like obtaining a non-service animal when it is specifically denied in the rental agreement, or moving in additional non-approved persons. You can also evict your tenant for performing illegal acts or allowing illegal activity on your property, like the sale of drugs, although a supporting police citation or criminal case would be required.

You cannot evict your tenant in California as any kind of retaliation for their performance of certain protected activities, like requesting repairs that are necessary and not at the fault of the tenant or tenant’s guest. You cannot evict your tenant for obtaining a service animal, even though your lease specifically provides there are to be no animals on the premises.

strict eviction laws

Serving an Eviction Notice to your Tenant in California

Before you can start and Unlawful Detainer, the lawsuit to Evict your Tenant in California, you must first serve your tenant with a Legal Written Notice. The Notice for each case will vary depending on the reason for the Eviction. Notices must be served in compliance with the California Code of Civil Procedure (CCP) §1162.

If your Tenant has failed to pay the rent you would serve them a 3-Day Notice to Pay Rent or Quit. Or if the Tenant has moved in additional non-authorized persons, you would serve a 3-Day Notice to Perform Covenants. If the tenant has or has allowed illegal activity on the property then a 3-day notice to quit would be used as that is considered a non-curable breach and the tenant will not be given the opportunity to fix his or her wrong doings.

If you are simply seeking to get possession of your property back so you can move into it yourself or move a family member in you would serve a 30-Day Notice to Terminate Tenancy if the Tenant has been in the property for less than one year, or a 60-Day Notice to Terminate Tenancy if the Tenant has been in the property for more than one year, keep in mind that the tenant must be on a month to month rental agreement at this time or the notice will not work. For example, if you are one year into a two year lease then you cannot serve a 30 or 60 day notice to the tenant as they have a contractual right to be in the property for 2 years unless they fail to pay rent or breach another covenant that give you cause to evict them.

The notice served will be the cornerstone of your lawsuit, so it must be appropriate and contain all information required by law or statute.

You can service the notice by 1) either personally delivering it to one of the Tenants named on the notice, or by 2) substitute serving the notice to an adult on the premises if the named Tenant(s) are not available and by mailing the notice addressed to the Tenants at the property, or 3) by posting a copy of the notice in a conspicuous place on the property if no adults are available for service and mailing a copy of the notice addressed to the Tenants at the property. Again, see California Code of Civil Procedure (CCP) §1162, this is the specific law that covers service of the notices.

Expiration of the Notice

Once you have selected the appropriate notice to serve your Tenant in your specific circumstance. Now you must wait the requisite days for the notice to expire for the Tenant to Perform pursuant to said notice. If you have served a 60-Day Notice to Terminate Tenancy you must wait the 60 Days to see if the Tenant vacates pursuant to the notice. If you have served your tenant a 3-Day Notice to Pay Rent or Quit you must wait the 3 Days to see if the Tenant pays the demanded rent or vacates the premises.

If the Tenant(s) perform pursuant to the served notice, you will not need to, and cannot, complete an Eviction against the Tenant(s) in California. If the Tenant(s) fail to perform pursuant to the notice you will need to proceed with an Eviction of the Tenants.

Filing the Lawsuit

At this point, your Tenant has failed to perform the requirements of the Notice and you are now ready to evict your tenant by filing an Unlawful Detainer in court. In California, to evict your tenant you must file a lawsuit, with the court. This lawsuit is called an Unlawful Detainer. The basic forms required for this are 1) a 5-Day Summons, 2) Verified Unlawful Detainer Complaint, and 3) a Civil Case Coversheet. These are going to form your “Eviction Packet.” Depending on the county in which your property lays you may be required to file additional documentation, like a Civil Case Cover Sheet Addendum in the County of Los Angeles. An optional Prejudgment Claim of Right to Possession may also be filed with the court and served on the Tenant(s). This document allows the Sheriff to lockout any and all persons who may be on the property at the time of the lockout, not just those whose names are known to you.

You will need to take to the designated court at least two copies of the fully completed eviction packet. One copy will stay with the court, the second copy will go with you to be duplicated and served on the Tenant. While at the Court a Clerk will “conform” all of your documents. This means that the Clerk will file stamp the documents and apply and assign a Court Case Number specific to your lawsuit and your lawsuit alone.

Eviction-Notice

Serving the (UD) Lawsuit on Your Tenant

Once your documents have been filed with the court and you have a Court Case Number, you must legally notify your Tenant(s) of the lawsuit. This is done through service of the Eviction Packet as stated above. If you are serving a Prejudgment Claim of Right to Possession the service must be completed by the Sheriff or a Registered Process Server. If you are not serving a Prejudgment Claim of Right to Possession the Eviction Packet may be served by any Adult other than the Plaintiff/Landlord and it is a good idea not to uses a relative to serve the Summons.

The Eviction Packet must be served in a legal manner and cannot simply be posted and mailed as the Notice. The first, and preferred, method of service is by personal service to each Tenant-Defendant separately. If, after three attempts of service on three separate days at three separate times of day, personal service cannot be elicited, the Eviction Packet may be served by substitute service on any adult occupant in the property, accompanied by mailing. If the tenants are unable to be served by either of these methods, an Order to Post must be sought and granted by the court before Posting and Mailing can be performed. Once a judge or commissioner has signed off on an Order to Post, you may then, and only then, serve the Eviction Packet by posting one copy for each Tenant/Defendant in a conspicuous place on the property and Certified Mailing one copy addressed to each Tenant/Defendant at the property.

Waiting for a Response

After the tenants have been lawfully served the Eviction Packet you now must wait the required amount of time for the Tenant(s) to lawfully respond to your Lawsuit. If the Tenant(s) were served by personal service, this is five (5) days. If the Tenants were served by substitute service and mailing or posting and mailing, it is fifteen (15) days from the date of completion of both steps for service.

If you have served a Prejudgment Claim of Right to Possession you must allow ten (10) days for any and all “Unknown Occupants” to file a response.

If after the required amount of time no response has been filed you will submit a “default” pack to the court and proceed to a Sheriff’s Lockout. If the Tenant(s) file a response you will need to go to court, as stated in the next section.

Going to Court

You have given your tenant a notice, they have failed to perform pursuant to that notice, you filed and served a lawsuit, and now your tenant has filed a response to the lawsuit. You must now go to court. There are a number of different pre-answer motions that can be filed, most notably a Motion to Quash, Demurrer or Motion to Strike, however these Motions are only filed in about 15% of cases. The most common response to the Unlawful Detainer Complaint is an Answer. An Answer is exactly what it sounds like; it is the tenant’s answer/responses to the claims of the complaint. Once an answer has been filed the most common route to take is to file a Request to Set the Matter for Court Trial.

Once a Request for a trial has been set the court trial is usually set within 21-30 Days. At the trial both parties will go before the judge and plead their cases. 95% of the time you will receive a ruling and judgment at the trial.

Lawsuit

If a party to the case has filed a demand for a jury the court will usually set the trial date within 21-30 days; however, the party demanding the jury trial must deposit with the court jury fees not less than five days before the trial is set to begin. Jury trials are entirely different animals from court trials and can take weeks to complete. It is highly advisable to seek immediate counsel if a party has demanded a jury trial, which is common in cases where the tenants have hired legal aid types to represent them.

Once a judgment has been rendered in your favor you must obtain a Writ of Possession from the court. This is the document that allows the sheriff to complete a lockout and return possession of your property to you.

The Lockout

You have obtained a writ of possession and given it, along with written instructions, to the sheriff of your county. The sheriff must now post a 5-Day Notice to Vacate on the property informing the tenants of a lockout date. This date is almost certainly not the actual date of the lockout. After the Sheriff has posted this notice and waited the requisite 5 days they will contact you or any agent you have designated to inform you of the actual lockout date. You or your agent will need to be present at the lockout to take possession of the property. The sheriff will not force their way into the property by breaking doors or windows, so you must have working keys to the property or a locksmith at the lockout to provide entry. The sheriff will, if necessary, forcibly remove individuals from the property and effectively turn over possession to you.

After the lockout, the tenants have fifteen (15) days to return and take with them their possessions. You must be reasonably available for the tenants; however it is at your convenience that they return to get their possessions. If after 15 days the tenants have not returned to regain their remaining possessions you may either 1) trash the items or otherwise dispose of them as you see fit so long as the reasonable net value is under $700, or 2) sell the items at a public auction if the reasonable net value is over $700. Lastly, while you are likely to be owed money from the tenant and you intend to use the security deposit for that amount, you must still send to the tenants at their last known address (usually your property) a Security Deposit Disposition Letter within 21 days after the tenants have vacated the unit (the lockout date).

You now will have possession of you property after completing a successful California Tenant Eviction, and can move on with your life by re-renting to better tenant in the future so you don’t have to go through this process again.

For professional help evicted a tenant, contact us today.

30 Day Notice is the Initial Stage of Tenant Eviction

A 30 Day Notice to Terminate Tenancy is a California Eviction Notice used to give a month-to-month tenant, who has resided in the premises for less than 1 year, notice that the owner wishes to regain possession of the property after the 30 Day Notice to Terminate Tenancy expires. It is the initial stage in a tenant eviction. The notice must be in writing; state the full names of the adult tenants; have the full address of the rental property; and state that the month-to-month tenancy will end in 30 days.

The California 30 Day Notice to Terminate Tenancy is given to a tenant on a month-to-month tenancy, or tenants who can be considered “tenants at will”. A “tenant at will” is a tenancy agreement where a tenant occupies a property with the consent of the owner, but without an agreement that specifies a definite rental period or the regular payment of rent.

The 30 Day Notice to Terminate Tenancy gives the tenants notice that they are expected to vacate the property by the expiration of the notice. The tenants are responsible for all of the rent until the expiration of the California 30 Day Notice to Terminate Tenancy, even if they move out before the 30 Day Notice expires.

california-eviction

If the tenants do not vacate the property by the expiration of the California 30 Day Notice to Terminate Tenancy, an Unlawful Detainer action will need to be filed with the Superior Court so that the owner may regain possession of the property.

In most cases the owner does not have to specify a reason for serving the 30 Day Notice to Terminate Tenancy on the notice however, the owner may have to include a reason for serving a 30 Day Notice to Terminate Tenancy  depending upon whether the city or county where the property is located has special rules. In rent-controlled cities, an owner cannot terminate a month-to-month tenancy for just any reason. The owner must find out if the unit is in a rent-controlled city, and if so, whether he or she has the right to terminate the tenancy.

An owner can give a tenant more than 1 notice at the same time. For example, if the tenant is late with the rent, the owner can serve a 3-Day Notice to Pay Rent or Quit and a 30-Day Notice to Terminate Tenancy at the same time. If the tenant does not pay the rent before the 3-day Notice to Pay Rent or Quit expires, the landlord can file an unlawful detainer. If the tenant pays the rent within the 3-day period, they still must move out in 30 days. If the tenant does not move out after the 30 Day Notice to Terminate Tenancy expires, then the owner has to file an unlawful detainer case.

If you need professional help with an eviction, don’t hesitate to contact us today.