Eviction is a legal process by which a landlord forces a tenant to move out of the landlord’s property involuntarily and usually permanently.
In some areas, landlords can evict their tenants without cause. In other areas, the law requires landlords to have a “just cause”, which usually includes nonpayment of rent or damaging the property.
The requirement of notice also varies; in some areas, landlords must post an official eviction notice on the property a certain number of days before the tenant can be forced off the property. In some areas the landlord must get the police to post this notice.
Some jurisdictions require the landlord to obtain a court order before a tenant can be evicted.
Notice Preceding Complaint
Under California Law, a Landlord must serve the tenant with a Notice before an eviction procedure can commence. If the tenant is behind on rent, a 3-day Notice to Pay Rent or Quit must be served. If the lease has been violated, then a 3-day Notice to Perform Covenant or Quit must be served, and the Landlord should try and collect evidence to prove that a breach has occurred. These notices must be stated in the alternative (providing tenant an opportunity to correct the breach) to be valid. If the breach is serious (as defined by law) and not curable, (e.g. the tenant has been using or selling drugs), the notice does not have to be phrased “in the alternative”, and a 3-day Notice to Quit may be served, stating the incurable breaches.
If landlord wishes to terminate a month-to-month rental agreement without good cause, 30 days Notice must be given, and 60 days Notice must be given if the tenant has lived on the premises longer than one year.
If the tenant remains on the premises after the expiration of the Notice (without correcting the breach if applicable), then the Landlord may file an Unlawful Detainer lawsuit with the court, and have the documents personally served on the tenant (other methods of service are not ideal, as they allow the tenant more time to respond, while service by posting requires a court order).
The trial process is expedited due to the time sensitive nature of the matter (i.e. the landlord may be losing rent each day the tenant is in possession of the premises), and the tenant is allowed only five days to answer the Complaint. If the tenant fails to respond, the Landlord may obtain a Default Judgment, and Writ of Possession, and have the Sheriff execute the Writ by forcibly removing the tenants if necessary.
If the tenant does Answer the Complaint (which is always in their best interest, even if they have no reasonable argument for defense), the landlord may set the matter for trial by filing the appropriate document with the court. The trial will be set by the court within twenty days. The trials are generally less than an hour long, unless the tenant requests a jury trial, which is rare. Each side is allowed to present witnesses or evidence to prove their case. Generally, in non-rent controlled jurisdictions, the landlord prevails unless they overstated the amount of rent due, or committed some other fatal error in either the service of papers, or in the Notice or Complaint.
Many times, it is possible to settle Unlawful Detainer cases via a Stipulation.
Landlord/Tenant Law, while not as complex as many other areas of Law, is still too complicated for the average landlord or tenant to fully understand. Landlords may want to consider hiring an attorney to represent them in their case, as issues such as retaliation and habitability are commonly raised as a defense. Tenants are also well advised to seek legal counsel if they can afford it. There are inexpensive or free legal aid centers for those who qualify.
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