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 three-day, 30-day or 60-day eviction notices. The reasons for filing the different notices are covered in this posting on the Express Evictions blog. 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 detail at this Web page.

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 the most accurate and knowledgeable assistance you can call one of Express Evictions’ seasoned and practiced clerks at (800) 491-1951 for a consultation or to initiate the production and service of your notice or, if you have