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How to Evict Someone in California

January 29, 2012 | Comments: 0 | Views: 159

Before the landlord can file an Unlawful Detainer lawsuit, the landlord must terminate the tenancy. If the tenant has a month-to-month tenancy, known as a periodic tenancy, and has occupied the premises for less than a year, then the landlord must give 30 days notice to terminate. This notice doesn't have to be given at the beginning of the month. If the tenant has occupied the premises for a year or more, then the landlord must give 60 days notice to terminate. If the tenant violates the terms of the lease, such as to pay rent, then the landlord can serve the tenant with a 3-day notice to correct the problem or move out.

The three-day notice is appropriate where the tenant is in violation of the lease, causing great damage to the property (waste), or creating a nuisance. A nuisance is some action by the tenant that interferes with the neighbors right to enjoy their property. An example would be a tenant who routinely plays loud music. The tenant who is causing damage or creating a nuisance is served with a Three-Day Notice to Perform Covenant or Quit. This notice basically says correct the behavior in 3 days or the tenancy is terminated. So if the tenant has a pet in violation of the rental agreement, then this notice gives the tenant an opportunity to get rid of the pet and comply with the lease. There are circumstances where the landlord doesn't need to give the tenant the opportunity to correct the problem, such as a tenant using the property for illegal purposes or a tenant who has sublet the entire premises. In such a case, you can state in the notice that you are demanding a forfeiture of the lease.

When the tenant fails to pay rent, the tenant is served with a Three-Day Notice to Pay or Quit. The California Code of Civil Procedure is very specific as to what is required in this notice and how it is served. If done incorrectly, then the landlord could end up back at square one of the eviction process. Worse yet, it could render the lawsuit defective and the landlord could end up paying court costs to the tenant. The notice must contain: the tenant's name and the names of all adult occupants, regardless of whether they signed the original lease; The property address must be listed; A demand to pay the stated rent or move out; A statement that you will pursue legal action or declare the lease forfeited if the tenant does not pay the rent due or move; Information as to name, telephone number, and address where to pay the rent; the hours you will be there to accept rent; and finally, a signature by the landlord. The notice can state a financial institution with account number as the place to pay, but only if it's located within five miles of the premises.

It is important to note that only rent due can be demanded. If the landlord demands one penny more, then the notice is defective. That means that if the lease addresses things like late fees and utilities, those amounts would be inappropriate to demand in a Three-Day Notice to Pay or Quit. If the rent is due on the first of the month, the Three-Day Notice to Pay or Quit can demand this entire amount and is not based on the date the notice is served. You can state in the notice that if they don't comply, you will be suing the tenant for rent, costs, and attorneys fees, as per the lease or rental agreement.

Landlords should also be aware that a New York court found that a Three-Day Notice signed by someone other than the landlord triggered the Fair Debt Collection Practices Act. The net effect of this is that the lawsuit is no longer a summary proceeding and the debtor has 30 days to respond. This application hasn't been found in California yet, but it certainly could be.

The Notice can be served any day after rent is due. If the landlord routinely accepts the rent a few days late, this could pose a problem if the notice is served during this time. The tenant could claim that the landlord waived that portion of the agreement and the tenant relied on this to their detriment. To prevent this "estoppel defense" it is best to wait beyond any traditional "grace" period. As pointed out in the earlier section, it is best to state in the rental agreement that any acceptance of late rent doesn't constitute a waiver of the due date.

The notice can be served by anyone, including the landlord. The best method is to have someone who is 18 or older serve each tenant the notice. If the tenant refuses to accept the notice, it is acceptable to drop it at their feet. If they close the door before one can serve the notice, it is also acceptable to slide it under the door and state that you're "leaving the notice" for them. If you attempt to serve the notice but the tenant never seems to be home, substituted serve is allowed. First try and serve the tenant at home and at work, more than one attempt is needed, and then the notice can be left with an adult at the home or workplace and copy is mailed to the tenant at home by first class mail. Lastly, if nobody is at the home, or a work address isn't known, then one can serve the notice by posting a copy on the front door and mailing a copy by first class mail.

It will be required to attach a copy of the three day notice to the Unlawful Detainer lawsuit and the method of service will need to be stated or a copy of a "proof of service" attached. Your course of action will now be determined by how the tenant responds to the Three-Day Notice to Pay or Quit. If they fail to pay and they don't move out, then landlord will need to file a lawsuit. The earliest an Unlawful Detainer complaint can be filed is after three days plus the day of service. For example, if the notice is served on a Monday, that day isn't counted. The tenant then has 3 full days to pay or quit, or by the end of Thursday. This means that Friday would be the earliest one could file the complaint. Do not accept rent after the 3 days unless you want to continue the tenancy. You will be unable to evict the tenant after you have accepted rent.

As a strategy, it is usually prudent to serve a Three-Day Notice. There are times where it would be better to serve a 30 or 60-day notice. If a landlord is evicting a tenant for violating a lease term, waste, or nuisance, it is important to understand that the burden of proof is on the landlord. If the tenant isn't late on rent and the lease term has expired, then the periodic tenancy can be terminated with a 30 or 60-day notice, as appropriate. Generally, the landlord doesn't need a reason to terminate the tenancy with a 30 or 60 day notice, but in San Diego, and some other cities, there is what is known as a "Just Cause" eviction law. The 30 and 60-day notices can be served on any day of the month. It is important to then count 30 or 60 days after the service to determine the ending date. It is best to serve this notice right after rent is received.

As a footnote, this is a good place to address security deposits. This applies to the 30 and 60 day notice to move. Before a tenant moves out, you must give them notice of their right to an inspection of the unit. You can then give them an itemized list of problems, and they have an opportunity to cure the problem. If the tenant does move out, and the landlord is in possession of the premisses, then the landlord must provide an accounting to the tenant within 21 days of their vacating, along with any refund due. California allows the landlord to deduct any unpaid rent, cleaning costs, and repairs beyond normal wear and tear. The landlord must attach receipts to the accounting, and if they performed the work themselves, then it must state the time spent and the hourly rate charged. The hourly rate must be reasonable. If the tenant doesn't provide a forwarding address, then the statement must be mailed to the address of the rental unit.

After the tenant fails to respond to the applicable notice to evict (3-Day Notice, 30-Day Notice, or 60-Day Notice), the landlord can file an Unlawful Detainer lawsuit. As mentioned previously, the lawsuit cannot be filed one day early, and the computation of the expiration of the notice period is critical.

After the lawsuit is filed, the summons, complaint, and all attachments are served on the tenant personally. If "personal service" is not possible for a valid reason, the law provides alternative methods of service. The landlord cannot serve these papers, and if there are unknown adult occupants, then the landlord must use a sheriff, marshal, or process server to serve the summons and complaint, along with a Prejudgment Claim of Right of Possession on said occupants.

The tenant will then have five days from the date of service to file an answer with the court, unless not personally served, in which case the tenant has an additional ten days to respond. If a Prejudgment Claim of Right of Possession was used, the unnamed occupants will be given ten days from the date of service to join the lawsuit or face eviction.

If the tenant fails to file an answer within the allowed time, then the landlord can request a default judgment. This is considered an uncontested case, and as long as the documents filed by the landlord are in order and prove the case, then the court will enter a judgment in favor of the landlord. If the Prejudgment Claim of Right of Possession was used, the landlord must wait ten days to get a judgment against unnamed occupants. If the case is uncontested, the forms that need to be prepared are the Judgment and a Writ of Possession. The removal of tenants will not occur until the sheriff had the Writ of Possession. That is what gives the sheriff legal authority to evict. If the tenant files an answer to the complaint, then the case is contested. The process following a contested case require requesting a trial date, serving more papers, and preparing for trial. The tenant can also ask the court to dismiss the suit or strike portions of the suit if any deficiencies are found in the summons and complaint. In addition, if summons and complaint aren't served correctly, the tenant can have the case dismissed.

The process can move very quickly, as far as legal cases go, but if there are errors or problems, the time required will increase substantially. Definitely don't attempt "self-help" to evict a tenant outside the legal process. You could quickly find yourself in violation of California Civil Code section 789.3, and you don't want that. Many landlords attempt try to navigate the process without outside help or they utilize a property management firm, but using the legal system to regain possession of your property can be very complex and is made easier with the use of an attorney.

By: Scott Rights, Esq.

Scott Rights, Esq. RIGHTS & HAND Attorneys at Law Landlord Tenant, Asset Protection, Estate Planning

619-356-1529 Please visit our site for more information about evictions and landlord tenant issues.

Source: EzineArticles
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