Why landlords must know and follow eviction law
By Barbara Craig, Attorney at Law
Every landlord eventually gets a less-than-ideal tenant, and despite best efforts to work with that person, sometimes the tenant must be evicted. As much as a landlord may want to change the locks or turn off the water to force the tenant to leave, taking such actions is unlawful and can subject the landlord to significant fines and penalties.
How to serve notice to a tenant
California state law requires that written notice be served upon the tenant before any other actions are taken to evict the tenant. Preparing and serving written notice properly is vital in order to preserve your rights as a landlord to control your rental property. This important first step is the area in which landlords are most likely to make mistakes.
The notice must state the reason the landlord intends to terminate the agreement with the tenant. The most common form of notice is the three-day notice to pay or quit. This notice is used when the tenant has failed to pay the rent as agreed. Many times, the notice will convince the tenant to pay the past-due rent, and the lease agreement will then continue without change.
But if the tenant has not either left the property or paid the past-due rent by the end of the three-day period specified in the notice, on the fourth day the landlord can then file an unlawful detainer complaint with the court of jurisdiction.
There are statutory requirements for all notices to be given to a tenant. California Code of Civil Procedure §1161 is the section that applies to notices. Failure to comply with the requirements for notice will cause a complaint to be dismissed. In that event, the process must start all over again with a proper notice served to the tenant, and a new complaint filed with the court. Mistakes like these are costly. Hiring an experienced landlord-tenant law attorney to handle your case from the beginning can save you time and money.
If the tenant exercises their option to quit and moves out of the property as a result of receiving notice, there is no further action necessary other than returning the security deposit, if any, or sending notice to the former tenant as to why some or all of their security deposit is not being returned. If at any point during the eviction process the tenant moves out of the property, but leaves any possessions behind, the landlord is required by law to store it for a reasonable period of time before he or she can keep, sell, donate, or dispose of it.
How to take a tenant to court
Unfortunately, most times a three-day notice is served, the tenant does not pay the past-due rent or leave the property within the notice period. The next step in this situation is to file a complaint with the court of jurisdiction. The basis of the complaint will be unlawful detainer, which is the legal term used to describe the act of retaining possession of property without the legal right to do so. The hearing for the action will be held at the Superior Court location that has been designated to handle unlawful detainer cases and is most conveniently located to the property, within the same county as the property.
There are many requirements for preparing and filing a proper complaint. Failure to comply with the California Code of Civil Procedures and the specific Superior Court’s rules can get your case dismissed, so having an attorney on your side will save you aggravation and get you the fastest possible results.
When filing the complaint, a 5-day summons must also be issued. Both the complaint and the summons must be served upon the tenant before the case can be heard by the judge. If the defendant (the tenant) fails to file an answer with the court within the 5-day period after being served, the plaintiff (the landlord) can request the court to enter a default judgment in the plaintiff’s favor, and issue a writ of possession to the plaintiff.
If the tenant does file an answer or makes an appearance before the court, there will be a hearing on the eviction matter. It is very important to make sure that all of the documentation and other evidence to support the complaint is in order. A clean copy of the lease, the three-day notice, and rent rolls should be available to prove the case to the judge. The landlord should also try to anticipate any defensive tactics or counter-claims the tenant may raise during the hearing, and prepare accordingly. Gathering complete documentation and making a credible and convincing argument before the court will help prevent unnecessary or unreasonable delays in the court ruling. An attorney with extensive experience in landlord-tenant law who has made many court appearances in unlawful detainer cases can make sure you are well prepared for your court hearing.
Once the court grants the judgment in favor of the landlord and issues a writ of possession, the writ can be served upon the tenant by the county sheriff. The sheriff’s department will schedule the eviction with the landlord, as the landlord will need to be present at that date and time.
Do you have questions about landlord-tenant law such as eviction proceedings and unlawful detainer filings, or other concerns when it comes to protecting your rental property and landlord rights? Contact Landlord-Tenant Law Attorney Barbara Craig to schedule a free consultation. Serving clients in the South Bay area including Torrance, San Pedro, Lomita, Harbor City, Carson, Wilmington, Long Beach and other nearby communities.
Photo courtesy Jeroen van Oostrom