Daniel E. Hanley
Attorney at Law for Real Property - Evictions

San Jose, California, Attorney at Law since 1974 and licensed Real Estate Broker and Private Lender since 1980. In addition to real estate evictions, I specialize in elder law, estate planning law, real estate loans and small business matters. Call me now for a free phone consultation.

Ins and outs of eviction - Guide for landlords and tenants:

NOTE: We are currently counseling LANDLORDS ONLY.

The rights afforded to tenants and obligations imposed on landlords under California Landlord-Tenant law is often complex. The main concern faced by landlords and tenants revolves around the eviction process. Eviction is a lawmen term for Unlawful Detainer, which is the legal name given to eviction. An unlawful detainer is an expedited statutory procedure under CCP 1161-1179(a) that generally:

Permits a landlord or its successor to regain possession of premises occupied by tenant or other occupant;

Permits new owner to obtain possession following foreclosure or execution sale; and

Applies to tenants or occupants whose right to possession has lawfully terminated.

Tenants often want to know whether they can defend themselves from an eviction, while landlords main focus is on correctly following the somewhat technical legal aspects of the eviction process.

This article will outline the basic procedural steps used by landlords to successfully complete an eviction, as well as potential defenses that can be utilized by tenants who attempt to defend an eviction suit brought by a landlord.

Before a landlord files an Unlawful Detainer action, they typically must properly fill out and serve legal notice. The notice required (3-Day, 30-Day, 60-Day, or 90-Day) varies depending on the factual circumstances surrounding the case. Notice requirements are very stringent and constantly changing. Tenants often successfully defend an unlawful detainer on technical arguments based on the landlord failing to serve proper notice.

The most commonly used notices are:

3-Day Notice to Pay Rent or Quit;

3-Day Notice to Perform Covenants or Quit;

3-Day Notice to Quit;

30-Day Notice to Quit; and

60-Day Notice to Quit.

There are numerous legal requirements that must be included for all the different types of notices to be valid, which the attorneys at Hanley Law can assist you with.

This notice is the most commonly used. Landlords use this type of notice when the tenant is late on paying rent. Landlords can pursue several courses of action when the tenant fails to pay rent - experienced landlords know that tenants sometimes fail to pay rent on the due date (this is why many leases contain extension periods that allow tenants 3 - 5 days after the due date to pay rent). Diligent landlords typically contact the tenant directly before serving notice to determine the intent of the tenant regarding the paying of rent. There is no reason to incur legal fees to serve notice to a tenant who plans on paying, but failed to due to an explainable and/or forgivable reason.

This notice is used when the tenant broke an agreed upon condition of the lease, and the tenant is able to fix the problem. This type of notice is most commonly used in commercial leases. As is the case with 3-Day Notice to Pay Rent or Quit, there are numerous technical requirements that must be included in the notice to be legally valid. A 3-Day Notice to Pay Rent or Quit and a 3-Day Notice to Perform Covenants or Quit are conditional notices, meaning that the tenants don't have to move out if they do what the notice says. If the tenant fails to do what the notice says, the landlord can proceed with an unlawful detainer suit.

This type of notice is used when the tenant:

Assigned, sublet, or committed waste in the property, which is in violation of the lease agreement;

Kept or allowed a "nuisance" on the property; or

Used the property to do something illegal (like selling drugs).

While many tenants consider actions of their neighbors a "nuisance," a legal nuisance is narrowly defined and several factors must be present to qualify as a legal nuisance.

As is the case for the 3-Day Notice to Pay Rent or Quit, a smart landlord will first contact the tenant to determine whether the tenant is planning to take corrective action to resolve the lease violation. This is a wise course of action for landlords to pursue because the problem could potentially be resolved without resorting to legal measures. Furthermore, landlords have a heavy burden if an unlawful detainer is eventually filed in these type of cases.

If the tenant defends an unlawful detainer based on a 3-Day Notice to Quit, the landlord has the duty to prove that the tenant's bad behavior is an ongoing problem, which:

Threatens health and safety;

Makes people not want to visit the property; and

Lowers the property's value significantly.

These type of cases are not clear-cut and landlords often incur significant attorney fees if an unlawful detainer complaint needs to be filed to resolve the dispute.

A 30-Day Notice is given when the landlord wants to end a month-to-month tenancy for someone who has lived on the property for less than one year.

A 60-Day Notice is given when the landlord want to end a month-to-month tenancy for someone who has lived on the property for over a year.

A landlord does not have to serve a 30-Day Notice or 60-Day Notice at the beginning of the month. Rather, the time period begins to run when the landlord serves the notice. For example, if the landlord serves the 30-Day Notice on June 15, the 30-Day Notice period elapses 30 days thereafter, on July 15, at which point the unlawful detainer action can be filed, if needed. The tenant is obligated to pay a prorated portion of the rent for the time period they remain on the property.

See Foreclosure - California Property for a detailed discussion on the special notice rules that apply to properties subject to foreclosure or execution sale.

Due to the high cost of moving a mobile home, California law has special rules for the eviction of mobile home tenants (Civil Code §798-799.10) by providing that landlords must provide tenants with 60-Day Notices to initiate mobile home tenancy evictions.

If a mobile home landlord has given the tenant a 3-Day Notice to Pay Rent or Quit on 3 or more separate occasions within a 12-month period, no subsequent notice shall be required in the case of a subsequent nonpayment of rent, utility charges, or reasonable incidental service charges. In that case, only a 60-Day Notice is needed to evict the non-paying tenant CC §798.56(e)(5).

Sometimes, a landlord can provide more than one type of notice - this is used in several contexts and may be beneficial to landlords given the factual circumstances.

A common example is when a tenant is consistently late making rent payments and the landlord wants to get a new tenant. In this case, a landlord can serve both a 3-Day Notice to Pay Rent or Quit AND a 30-Day Notice or 60-Day Notice to Quit. This means that the tenant has 3 days to pay rent or leave the premises; however, even if the tenant pays rent, they have to leave within the latter notice period (30 Days or 60 Days). Landlords can utilize this method to ensure they are covering all basis when they want to ultimately evict an undesirable tenant.

Preparing the proper notice with all the necessary verbiage is only the first step for landlords attempting to commence the eviction process. Notice has no force and effect if it is improperly served on the tenant(s). Landlords may serve the notice themselves, however, we recommend landlords retain attorneys who have amicable long-standing business relationships with trusted process servers to serve notice to avoid technical requirement defenses by tenants down the line.

There are three ways that service can be done:

Personal service;

Substituted service; and

"Nail and mail."

Personal service is when the tenant is physically handed the notice by the landlord, or the process server working for the landlord.

If the person the landlord wants to serve is not at home or work, the landlord may serve notice to a suitable person at the tenant's home or work. The person served must be 18 years of age or older. In addition to serving a substituted person, the landlord must also mail a copy of the notice to the person's home.

If a tenant cannot be located at their home or place of work and a substituted person can not be found to provide a copy of the notice, a landlord can:

Attach a copy in the place where the tenant can easily see it (ex: front door);

Give a copy to a person who lives there (if someone can be found); and

Send a copy by mail to the property with the name/address of the person the landlord desires to evict on the envelope.

Exceptions - Cases where notice is NOT required:

Sometimes, notice is not necessary. No notice is necessary in cases where:

The tenant's lease is up;

The landlord accepts the tenants notice to end the lease;

The tenant works for the landlord and fails to pay rent; or

The tenant voluntarily moves out.

A "fixed term" lease determines what day the lease terminates and also how the lease may be extended. If the tenant has an expired lease that is not extended by the landlord, the landlord may file an unlawful detainer action without resort to first serving notice.

Landlord accepts the tenants notice to end the lease:

A landlord or tenant may end the lease before the lease expires. The lease provisions provide how and when notice must be given to terminate the lease. If the tenant provides notice as detailed in the lease provisions, but fails to move out, the landlord may file an unlawful detainer action without resort to serving notice first.

For example, Larry Landlord and Terry Tenant enter into a one year lease, the provisions of which provide that Terry can terminate the one year lease before expiration of one year provided that Terry provides Larry 30-Days written notice. Terry provides Larry with a written 30 Day Notice to Terminate six months after the lease commenced, yet Terry fails to move out after 30 days - Larry can proceed with an unlawful detainer action against Terry without first serving notice on Terry.

If the tenant lived on the landlord's property as the landlord's employee, agent, or licensee, and the tenant failed to pay rent, the landlord may file an unlawful detainer action as soon as the tenant loses status as a an employee, agent, or licensee of the landlord.

This form of unlawful detainer only works if the rent is at least 14 days past-due and the landlord has reason to believe the tenant has left the premises. The notice in this scenario must:

Be in writing;

Entitled "Notice of Belief of Abandonment;"

Name all of the suspected tenants;

State the address the landlord is attempting to regain possession of;

State the lease termination date (this date cannot be less than 15 days after personal service of the notice, with an additional 3 days if served by substituted service); and

Be signed and dated by the landlord.

Once the notice period has expired, the landlord must prepare, file, and serve an unlawful detainer complaint and summons in the County where the property is located. Attorneys must be aware of the local rules of the County where the unlawful detainer is being filed because each County has different document requirements in unlawful detainer actions. Landlords should consult with an attorney throughout the eviction process, especially when it comes to filling out, filing, and serving the unlawful detainer documentation as the legal requirements are tedious and must be complied with for a tenant to be properly evicted.

The Court will issue a 5-Day Summons, which needs to be served on the tenants along with the complaint. Careful consideration must be taken as there are special time period requirements that must elapse before the next step can be pursued.

It is oftentimes smart and sometimes necessary to file a Prejudgment Claim of Right to Possession along with the complaint and summons. Landlords should prepare and serve a Prejudgment Claim of Right to Possession if they suspect that a person may claim a right to possession (and that person has not been named on the termination notice and summons and complaint) because he or she is:

Living with the named tenant as a roommate and paying rent; or

An occupant claiming to have occupied the premises at the time the action was filed.

Proper service of a prejudgment claim with complaint requires:

All unnamed occupants to immediately file claims followed by answers to the complaint and precludes post-judgment claims of right to possession;

Service of a copy attached to the summons and complaint; and

Service by a marshal, sheriff, or registered process server at the same time as serving a tenant and subtenant.

The Marshal, sheriff, or process server will provide the landlord with properly completed and executed declaration of service using a proof of service of summons, which must be filed with the court.

Pursue default judgment, if appropriate circumstances warrant:

If the tenant fails to file a response within five days after the complaint and summons are served (taking into account the special time period considerations which depend on how service is executed), the landlord may pursue entry of default and default judgment. Please note that local rules differ depending on which County the default is pursued; thus, the local court clerk must be contacted to ensure the steps mandated by local rules are complied with. A default judgment is an expeditious procedure that seeks immediate judgment for possession and eviction of the tenant, which restores the premises to the landlord quickly, thereby saving costs and allowing the property to continue being productive.

Tenants have several courses of action they may pursue after receiving an unlawful detainer complaint. If the landlord served a Prejudgment Claim of Right to Possession, the occupant served may file an answer within 10 days after receipt of service, which constitutes a general appearance. If a default judgment was entered, a tenant may make a motion to set aside the default. Some tenants decide to vacate the premises after receiving a summons and complaint, but before trial, which in practicality terminates the case, as possession of the premises is no longer an issue.

Unless a tenant has filed another pleading or secured an extension, a tenant must file its answer within 5 days after service of the complaint and summons is effected. Tenant may file to proceed in Forma Pauperis if the tenant can show that it cannot afford filing or other fees; tenant may move to quash service of summons and complaint if, for example, the summons or service of summons is defective, or the complaint fails to state an unlawful detainer cause of action; tenant may file demurrer on the grounds that a defect exists on the face of the complaint; or tenant may move to strike from the complaint or prayer any "irrelevant, false, or improper matter" or any part of the pleading "not drawn or filed in conformity with" state law, court rules, or orders. The answer will be a general or specific denial, which will often be accompanied with affirmative defenses.

General or specific denial and affirmative defenses:

If demand or leasehold value of property in controversy does not exceed $1,000., the tenant may allege a "general denial." If the demand or leasehold value exceeds $1,000., the tenant must allege a specific denial to each paragraph of the complaint.

There are numerous affirmative defenses a tenant may use, such as:

Landlord lacks title to the property, which is generally unavailable, unless the landlord puts it at issue or the eviction is due to an underlying foreclosure;

Landlord committed fraud when the lease was executed, which is generally unavailable, unless the tenant possessed the premises when the lease was executed;

Landlord engaged in acts interfering with the tenant's rights to use and enjoy the property, which is available in four situations;

Waiver or estoppel;

Landlord breached a promise to repair, which may be available if a landlord failed to make repairs promised in a residential tenancy lease, or in an additional agreement (typically unavailable in commercial leases);

Landlord breached the implied or statutory warranty of habitability;

Landlord committed a retaliatory eviction, which is used when the landlord penalizes the tenant who commits an act that was legally protected; or

Landlord committed discriminatory eviction, which is used when landlord seek to evict a tenant based on their race, sexual orientation, etc.

Cost to file an answer to an unlawful detainer action:

The fee to file an Answer to an Unlawful Detainer depends on how much money the landlord is asking for and also the local court rules of the County where the case is being filed.

If the tenant is considered a low income tenant, the tenant can ask the judge to waive the filing fee by filling out and filing a fee waiver form. Most Superior Courthouses provide forms for fee waivers.

After a tenant has filled out the proper answer paperwork, a copy must be served by mail to the landlord or their attorney. The tenant may not serve the answer - an adult (18 years or older), who is not involved in the case, must serve the answer and mail a copy and complete a proof of service. After the tenant mails a copy of the answer to the landlord or their attorney, the original answer and original proof of service must be filed in the courthouse where the case is pending.

After tenant files an answer, the landlord can request a trial. Evictions are considered "fast track" cases; therefore, the case will be scheduled in roughly 20 days. Unlawful Detainer trials can be complex depending on the factual scenario; thus, it is imperative an attorney is sought to represent landlords or tenants in trial.

Landlords and tenants and attorneys for both often discuss the matter at the Courthouse on the trial date. Sometimes, the parties are able to fashion an agreement (called a "stipulation") that the parties will advise the judge of; if an agreement cannot be reached, the court will hear the case on its merits.

The tenant may be able to request that a judgment be set aside in certain cases. For example, a judgment may be set aside if the tenant was never served the eviction papers correctly, or service thereof was improper. The tenant may also be able to appeal the judge's decision. The appeal process is complicated and very rarely successful in unlawful detainer cases because unlawful detainer cases are typically straightforward.

Tenants recourse if they "lose" trial but need additional time in the house:

The Landlord will receive a Writ of Possession at the termination of the trial, which will allow them to enlist the services of the Sheriff to evict the tenant. The tenant will receive a notice from the Sheriff shortly thereafter, which gives the tenant five days to leave the house. If the tenant is unable to leave the house by the fifth day, the tenant may file a Request for Stay of Eviction. The Stay allows the tenant to ask the Court to remain in the house for an additional 40 days. The Stay is not free, however, because the tenant must pay the fair market value daily rent to remain on the property.

The tenant must request the Stay before the date of eviction given in the Sheriff's notice. The Judge will not consider the Stay on the date of the Sheriff's notice. The tenant must call the landlord or their attorney before 10:00 A.M. on the court day before requesting the Stay. The tenant must tell the landlord and/or attorney for landlord that they will request a Stay on a specific day. The tenant must then file the necessary paperwork to request the Stay.

Tactics for landlord if eviction is stayed by bankruptcy filing:

If a tenant files a bankruptcy petition, any acts already taken or planned to be taken by the landlord to obtain possession of the property are stayed. If eviction proceedings are stayed, it must be noted that:

A tenant's leasehold interest becomes property of the bankruptcy estate on filing of the petition and bankruptcy trustee has authority to act on behalf of the tenant (or tenant becomes debtor in possession);

A motion for relief from automatic stay may be required before an eviction action may be brought or continued, unless a bankruptcy law exception applies; and

Sanctions or damages for violating the stay are expensive.

See Bankruptcy - Protection From Foreclosure for more information on the Automatic Stay in Bankruptcy.

Alternative to unlawful detainer court actions - Settle out of court:

Even if a landlord feels they have a strong case and will win on the merits if the case is decided by a judge, or a tenant feels they have a strong defense to an unlawful detainer suit, there are many good reasons to settle the case out of court.

The attorneys at Hanley Law are very experienced in negotiating settlements, which is often financially and emotionally beneficial to both landlords and tenants.

If landlords or tenants are able to settle out of court, the dispute will be resolved much quicker than if the case goes to trial. This means that landlords and tenants will spend less time away from work, save money by not incurring additional court costs and/or lawyer fees, and will also alleviate the stress associated with unlawful detainer actions.

Leases often contain attorney costs and fees provisions which provide that the losing party must pay the other party's costs and attorneys fees. By settling, landlords/tenants can't "lose" the case, which takes the possibility that they may have to pay the other side's costs and fees out of the equation.

Time is money - both for landlords and tenants. Landlords lose money through costs, fees, and loss of rent if they have to go through all the steps to complete an unlawful detainer suit. Tenants also lose money by having to pay the costs and fees associated with defending themselves from an unlawful detainer action. It is often cost effective for both landlords and tenants to settle the case before incurring often unnecessary fees and costs.

It can be very difficult for tenants to rent again if they have an unlawful detainer judgment against them. Landlords often do background checks by reviewing court records to determine whether tenants have had unlawful detainer judgments filed against them in the past. If tenants do have a negative unlawful detainer judgment history, landlords may not rent to them.

An unlawful detainer judgment can effect a tenant's credit rating, which will not only prevent the tenant from renting again, but will also thwart the tenant from other future financial actions.

See Foreclosure - Walking Away for the financial implications of damaged Credit Scores.

Reasonable landlords understand the plight of tenants who are being evicted and understand that tenants often need time to find a suitable new place to live. In this circumstance, a landlord and tenant can enter into a "conditional settlement" (stipulation) that provides the terms/conditions and date that the tenant must vacate the premises.

If drafted correctly, the stipulation will contain a provision regarding an immediate entry of judgment upon default of the tenant. This means that if the tenants pays late, or fails to leave on time, the landlord can file the stipulation with a declaration showing that the tenant failed to comply with the stipulation terms, thereby allowing the landlord to get a Writ of Possession immediately without having to follow normal eviction procedures.

Please see Real Property - Tenancy Notices before eviction process.

Written by Sean S. Hanley © 2011. All rights reserved.

For a more detailed information about real property, please see Real Property - Boundary Disputes, Real Property - Foreclosure Investors, Real Property - Homestead Law, Real Property - Inheriting Property and Real Property - Tenancy Notices.

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