Presented by:
BARRY LEE O'CONNOR & ASSOCIATES
A PROFESSIONAL LAW CORPORATION
3691 Adams Street Riverside, CA 92504
(951) 689-9644 Fax (951) 352-2325
Udlaw2@aol.com
We are a Professional Law Corporation practicing in a limited area of real estate law where we exclusively represent landlords in the state court system and creditors in the United States Bankruptcy Court. Our firm has filed over 20,000 evictions and is dedicated to service by being responsive, knowledgeable, personable and motivated, but at the same time providing reasonable flat rate fees. Please keep in mind that the information contained in this article deals with California law only and does not pertain to those areas that practice rent control. Such areas are governed by individual municipal codes which can vary from city to city.
This information sheet is provided as a general guide to allow you to understand the unlawful detainer process. If you completely read this guide it should answer most of your questions to unlawful detainers. If you are a landlord you should have an overall handle of the procedures and the process because you will probably have to go through it more than once.
Some books that I have for reference guides are longer than two thousand pages. This guide is not intended to be a complete thesis on unlawful detainer law or procedure. The statements contained in this guide are correct generalizations of the law that shall apply in the majority of residential cases.
An Unlawful Detainer action is a "Special Summary Proceeding" lawsuit that entitles the landlord to statutory priority over other civil cases. Your action still falls in this class as long as procession is at issue, once you get possession the case becomes a general civil action or you can dismiss the case and refile it as a small claims actions which is probably the better way to proceed. Because Unlawful Detainer actions are a special proceeding they are covered under different laws than a regular law suit and they move at a much faster pace.
ARRIETA CLAIMS
"Arrieta claims" are being explained before any explanation of the filing of the unlawful detainer since you must decide prior to filing if you desire to have a Pre-Judgement Claim Of Right to Possession Form served with your lawsuit on any potential occupants of the premises. Sometimes when the authorities attempt to perform the final lockout, a third party will claim to have been an occupant of the property but was not named in the unlawful detainer complaint and hand such authorities a Claim of Right to Possession form. The authorities would then have to stop the lockout procedure until a court hears the occupant's allegations at a hearing.
This all stems from the case of Arrieta v. Mahon, now codified in California's Code of Civil Procedure section 1174.3, when the Supreme Court of California held that before any person maybe forcibly evicted by the levying officer, they must have an opportunity to be heard – hence the term "Arrieta" claim.
We strongly recommend serving the Pre-Judgement form with the original summons and complaint. This is very important when you have adults living in the property and you are not sure who they are or what their names are.
CO-SIGNERS
A co-signer is a guarantor that the actual tenant will perform under the lease or rental agreement and specifically will pay the rent. A co-signer does not live at the leased premises.
An unlawful detainer is intended to be against those persons who reside in the premises. It is my professional opinion that the co-signer may not technically be a proper party in an unlawful detainer action because he does not live at the leased premises.
However, I am also aware that the co-signer is generally the only person that you could collect a judgement against, and that you don?t want to have to file a second lawsuit against the co-signer.
I know many fine, ethical attorneys who do name co-signers in the unlawful detainer actions in order to prevent the second lawsuit from having to be filed. I think the real issue is service of the co-signer because they do not live at the address of the tenants and require a second service. This is not at issue if the co-signer files an answer to the unlawful detainer action but if they are defaulted it is.
The co-signer can come back to court and have the default judgement set aside against them, for lack of proper service. I believe the best procedure is to pay an additional fee to have them served by a registered process server at their address, thus avoiding the problem. Many times they will want to buy the law suit away so as not to have their credit ruined. Getting the co-signer served will probably slow your eviction down a few days, but is the safest thing to do.
It might be advisable to have a letter written to the co-signer after the Three Day Notice to Pay or Quit has been served to try and resolve the matter, thus advising him or her that a law suit is about to be filed because the parties he or she has co-signed has not paid the rent.
ADDRESSES MUST BE CORRECT
An unlawful detainer is really nothing more than a process to obtain a court order to evict people from a certain address. The ultimate person that needs to be pleased in the end to do this is the sheriff. The sheriff requires the address to be marked and correct. It is utmost importance that you give the correct address and have the correct address on your notices and contracts. If the correct address is not provided or you have a wrong address listed on a contract or notice, the entire case may have to be redone from the start and you may be charged for another eviction.
NOTICES MUST BE ACCURATE
For example purposes in the rest of this information guide we shall assume the following facts are true:
Larry Landlord has rented to Terry Tenant and Tabi Tenant, pursuant a written month to month rental agreement signed by both Terry and Tabi Tenant. The rent is $1,000.00 per month due in advance on the first of the month, late if not received by the 5th of the month with a $60.00 late fee. Larry Landlord suspects that Terry and Tabi have adult friends living with them even though the contract states the Tenants are supposed to be the only tenants living on the premises. Terry and Tabi have lived in the property for only six months.
Usually a legally sufficient notice must be served upon a tenant prior to filing an unlawful detainer action against a tenant. In most cases the notice will be a Three Day Notice to Pay the Rent or Quit and/or a Thirty Day Notice to Quit or a Sixty Day Notice to Quit. If the tenants have lived in the property a year or more, the tenants must be given a Sixty Day Notice to Quit.
If a tenant is behind in the payment of rent, a notice to pay rent or quit should be served in most cases. The notice must not overstate the amount of rent due by even one dollar. If the rent owed is $999.00 and the landlord asks for $1,000.00 on the Notice to Pay or Quit, the landlord will probably lose his case at trial and have to start the eviction all over again. This will cost him another eviction fee and 4-6 weeks time to recover possession of his property.
On a residential eviction, most judges hold that a Three Day Notice to Pay or Quit may only demand rent, not late charges, security deposit, utility charges or any other charges. The landlord may serve a Three Day Notice to Perform Covenant or Quit to collect those charges, but in most cases I would not recommend filing a case strictly based on uncollected late charges or other fees, even if the lease allows for such.
If the tenant offers the full amount of rent demanded on a Three Day Notice to Pay or Quit, the landlord must accept the tender of rent by the tenant. A landlord does not have to accept a late or partial tender of the rent.
As an example, Larry serves a Three Day Notice to Pay or Quit demanding $500.00 which correctly states the past due rent, who it is to be paid to, where it is to be paid, what hours payment are to be accepted and a phone number. The notice is personally handed to Tabi Tenant on Monday, the 10th of the month. If the Tenant offers the entire $500.00 at any time from the 10th through and including the 13th of the month, Larry Landlord must accept the tender of the rent.
Larry does not have to accept any amount less than $500.00. Nor does Larry Landlord have to accept any money after the 13th of the month. However, always note why the tender was rejected - Was it a ?partial tender?? Or was it ?tendered late??
If you accept any amount of money after the service of the notice, you have waived your rights under the notice to proceed to evict your tenant. In our example, if you take $20.00 from Tabi Tenant on the 20th of the month, a new notice must be served.
This rule does not apply to commercial evictions in accordance with California's Code of Civil Procedure section 1161.1.
SERVICE OF A THREE DAY NOTICE TO PAY OR QUIT
The notice must be served on the tenants. Since Terry & Tabi Tenants in our example have both signed a written rental agreement with Larry, the notice can be served on only one of them. If the agreement had been oral the better policy would be to serve a separate notice for both Terry and Tabi individually. I always name Does 1-10, on a Three Day Notice and include any tenants who have signed the lease or any tenants that I know are living on the property. If there are persons living on the property and the landlord does not know who they are, I strongly recommend that a pre-judgement form be served on the Tenants with the summons and complaint.
It is important to know that if the rent is due on the 1st of the month, it is really only due on the first business day of the month. Let's assume the 1st was a Sunday and Monday the 2nd was a legal holiday, the 1st business day would be the 3rd of the month, and the Three Day Notice to Pay or Quit could not be served until the 4th of the month.
A notice may be served in any one of three ways:
(1) It maybe personally handed to the tenant. Personal service is effective as being handed to only one person on the notice. The tenant does not have to sign for the notice. If they will not take in their hand you drop it at their feet and tell them they are served. In our case, that means handing it Terry or Tabi.
(2) A notice may also be served by posting a copy on the door of the residence and mailing a copy to each tenant. You must attempt to serve Terry or Tabi in person. Knock on the door. If nobody answers, go ahead and attach the notice to the door firmly so it should not blow away - then mail a copy of the notice to the Tenants at their address. This is called ?Posting and Mail", or "Nail and Mail".
(3) A third way to serve is when you knock on the door and a competent adult non-tenant such as Tabi's mother answers the door and says, "Tabi is not here". Larry should then hand the notice to Tabi's mother, instruct her to give it to Tabi and Terry, and ask what her name is. He should also take note of the name and description of the person he served it to. Larry then needs to mail a copy to Terry & Tabi Tenants.
After service of the notice is complete, a Proof of Service should be filled out under penalty of perjury stating who was served, how, where, when and what, then signed and dated by the person who made the service. A copy of the notice served, proof of service and rental agreement (if you have one) should be supplied to the attorney's office for review and attachment to your complaint prior to the filing of any actual case. You may also be asked to fill out an attorney-client contract and questionnaire sheet at this time.
30 DAY NOTICE TO QUIT & 60 DAY NOTICE TO QUIT
In a month-to-month tenancy, either party may terminate the tenancy by the service of a Thirty Day Notice to Quit if the tenants have lived on the property for less than a year. If the tenants have lived on the property for a year or more, the Landlord must give a Sixty Day Notice to Quit. However, the tenants can still give a Thirty Day Notice to Quit to the landlord. In most cases, a landlord does not have to give a reason and later be able to prove the reason if he/she wishes to serve a Thirty Day Notice or a Sixty Day Notice.
Exceptions to this rule are if the lease is with government housing such as "Section 8" or in a rent control area such as in LA or Santa Monica. In these cases, "Good Cause" must be stated on the notice, and why. It is now generally believed if the lease involves government housing a Ninety Day Notice to Quit must be served. On any type of notice to quit, a landlord may not discriminate based upon race, religion, ethnic background, marital status (i.e., unmarried persons living together), or sexual orientation.
A landlord may not serve a thirty day notice or a sixty day notice on a tenant because the tenant has made complaints about the property to a governmental agency, or has threatened to withhold rent. Your attorney will likely prefer to know why you are serving a notice to quit on a tenant. It is important that the proper notice is served for the proper reasons.
If a landlord desires to evict a tenant, whether or not the tenant pays the rent due, a Three Day Notice to Pay or Quit may be served with a Thirty Day Notice or a Sixty Day Notice to Quit. The landlord is in essence telling the tenant that even if the rent is paid within the three days, he still wants to have the tenant move. If the tenant does not pay the rent, then an unlawful detainer action is filed based upon the Three Day Notice to Pay or Quit. If the tenant does pay, then the unlawful detainer can be filed at the expiration of the Thirty or Sixty Day Notice.
SERVICE OF UNLAWFUL DETAINERS
Each tenant must be served individually. Once a tenant is personally served they have 5 days to respond to the complaint and file the proper paper work with the court. After the process server has obtained "due diligence", (generally four or more attempts at different times of the day and night over a period of at least three days), the defendants may be served by substitute service. This means by leaving a copy with an adult in charge of the premises and mailing a copy to the person served. A defendant served by substitute service has fifteen days to respond to the complaint.
If the tenants are avoiding service (i.e., will not come to the door) one can request an order from the court to simply post the complaint, once the process server has obtained ?due diligence?. It generally takes a judge 1 to 10 days to sign the order for posting. Once the order is signed by the judge, the complaint is served by posting a copy on the door for each tenant/defendant and mailing a copy to them.
A defendant served by way of order for posting has 15 days to respond to the complaint. Obviously, "Posting Orders" is the slowest way to serve the summons and complaint. Therefore, it is only recommended when all other efforts have failed to serve the tenants/defendants.
If the defendants do not respond to the complaint in a timely manner, a clerk's judgement for possession is then filed with the court. Once the judgement has been entered by the clerk, a writ of possession will be issued. The writ will then be taken to the Sheriff's office, where the Sheriff will execute the writ. Executing the writ usually takes somewhere between 10 and 21 days - depending upon the sheriff, court, time of year and if an "Arrieta" claim has been filed. The average time of a lockout after the writ has been issued is about 14 days.
TENANT'S RESPONSE
Tenants usually file responses with the court solely to delay the process. If a tenant does file a response, it is usually an answer. Once the answer is filed, you can then file a request for a trial date. The filing of the tenant's answer delays the issuance of the writ of possession by 10-20 days.
The trial of an unlawful detainer is a formal proceeding. The landlord or manager must come to court and bring along his or her records, including a ledger card. This is extremely important if the tenant disputes either the condition of the property or the amount of rent owed. The witness who comes to court must have personal knowledge of the property, records and dealings with the tenants.
You should have your witness show up for court professionally dressed at least 30 minutes before the time of the trial. Most courts have a dress code that they enforce. You should be prepared to go over your answers and testimony with your attorney prior to the trial.
During the trial itself, the attorney will ask all the questions that you will need to prove your case. It is best if you just answer with a "yes" or "no".
Tenants sometimes file other responses with the court such as motions to quash, motions to strike, demurrers, motions to set aside a default and various requests for stays. These motions are usually just delay tactics on the tenant's part. However, each of these motions will likely require a court appearance by your attorney, which in turn would likely require an appearance fee.
DISCOVERY
In an unlawful detainer action, full discovery is permitted, but we find that it usually is not necessary to do discovery on the tenants. In some cases, the tenant's attorney will serve you with discovery. Some of the methods of discovery that might be used are: depositions, interrogatories, requests for admissions, as well as demands for inspection of documents and other tangible items.
There are tight time frames that discovery must be produced in an unlawful detainer action. Interrogatories are due within five days of their service upon the plaintiff. All discovery in an unlawful detainer action must be complete within 5 days of the trial date. Your trial maybe delayed if the discovery requested is not produced in a timely fashion. If your case involves discovery, the cost of your eviction action could likely increase as your attorney spends the time and resources necessary to abide by the rules of discovery and keep your case moving forward. (Many prudent attorneys will try to resolve the discovery issue with opposing counsel before responding to the discovery in order to keep your costs down).
WRIT OF POSSESSION
Once a judgment has been obtained either by default or after trial, a writ of possession must be issued. A "writ of possession" is a court order for the Sheriff to evict the tenants and place the landlord back into peaceful possession of the premises. You do not have possession until the tenant gives you the keys to the property or the Sheriff returns possession to you. It is best to stay away from the property when the unlawful detainer is being processed.
A writ must be posted on the premises by the Sheriff. The papers posted by the Sheriff let the tenant know when the Sheriff is going to evict them. This is usually 5 days after the writ is posted. After you are informed of the actual time of the eviction, please don?t tell the tenant.
From the date the Sheriff receives the writ until the actual date of the lockout takes 10-14 days.
The landlord or agent must meet the Sheriff at the property for the lockout at the designated time. You must show up a half hour early and stay at least a half hour later before you call someone to find out about the Sheriff. You should have someone to change the locks for you when the Sheriff shows up. If nobody shows up to meet the Sheriff at the lockout, it will be canceled and you are looking at least ten days before the Sheriff will come back out.
I would suggest having a locksmith change the locks on the property at the lock out.
TENANTS WHO FILE BANKRUPTCY
In California, tenants frequently file bankruptcy to delay the eviction process. When a tenant files bankruptcy, bankruptcy "stays" all state court actions against the tenant and in most instances will stop the eviction from proceeding.
To proceed against the tenant, the landlord must file a Motion for Relief from the Automatic Stay in the Bankruptcy Court where the tenant filed Bankruptcy. This should be done along with a Request to Shorten Time on the motion if the landlord has already filed Notice on the tenant or has a Judgement for Possession. The whole process of obtaining relief to proceed will slow your eviction down from 10 to 30 days. If the landlord chooses not to file a Motion for Relief, then it will delay your eviction up to 4 months and beyond - depending on whether your tenant filed a Chapter 13 or Chapter 7 bankruptcy. It is important that a landlord file a Motion for Relief From the Automatic Stay immediately upon finding out the tenant filed for bankruptcy.
ABANDONED PERSONAL PROPERTY
Where personal property remains on the premises after a tenancy has been terminated and the premises have been vacated by the tenant, the landlord shall give written notice to the tenant and any other person the landlord reasonably believes is the owner of such personal property.
The notice for personal property left on the premises shall describe the property in a reasonably adequate way to permit the owner of the property to identify it. The notice shall advise the person in question that the reasonable costs of storage may be charged before the property is returned, as well as where the property may be claimed and the date before which the claim shall be made.
The date specified in the notice shall be a date not less than 15 days after the notice is personally delivered or, if mailed, not less than 18 days after the notice is deposited in the mail.
The notice should contain one of the two following statements:
1. "If you fail to reclaim the property it will be sold at a public sale after notice of the sale has been given by publication. You have a right to bid on the property at sale. After the property is sold and the cost of storage, advertising, and sale are deducted, the remaining money will be turned over to the County. You may claim the remaining money at anytime within one year of the county receiving the money."
2. "Because this property is believed to be worth than less than $300.00, it maybe kept, sold, or destroyed without further notice if you fail to reclaim within the time indicated above."
I WOULD STRONGLY SUGGEST THAT YOU WORK WITH YOUR FORMER TENANT TO HAVE HIM OR HER REMOVE THEIR OWN POSSESSIONS FROM THE PROPERTY - EVEN IF YOU HAVE TO RENT A STORAGE PLACE FOR THEM AND PAY THE FIRST MONTH'S RENT.
For further help with your unlawful detainer action, please contact The Professional Law Corporation of Barry Lee O'Connor & Associates.
Barry Lee O'Connor & Associates can prepare, file and serve the Unlawful Detainer Action as well as any related motions. It uses a dependable, bonded, registered process server who understands the need for speedy service in a case in order to serve any papers. They will follow a legal procedure and get your tenant served as quick as legally possible.
The office of Barry Lee O'Connor & Associates can be reached at:
3691 Adams Street Riverside, CA 92504
(951) 689-9644 Fax (951) 352-2325
Udlaw2@aol.com
[Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither HandelontheLaw.com, or any of its affiliates, shall have any liability stemming from this article.]
