Basic Eviction Overview and Outline for California Unlawful Detainers

 

The general process and overview of a California unlawful detainer (eviction) case is as follows:

  1. Prepare and serve a termination notice on the tenant (for example, a 3 day, 30 day, or 60 day notice of termination)
  2. Prepare, file and serve the unlawful detainer summons, complaint, and supporting documents on the tenant
  3. Serve a “prejudgment claim of right to possession” on all unnamed occupants per California Code of Civil Procedure 415.46
  4. Wait the required time period to see if the tenant responds. If the tenant does not respond, request a default and judgment. If the tenant responds, proceed to the next step. The most common tenant response is the filing of an Answer (the tenant could also file a demurrer, motion to strike, or another document)
  5. If the tenant filed an Answer, the next step for the landlord is to file a request for trial and wait for a trial date
  6. Attend the trial and present your case
  7. Assuming the landlord wins the case, apply for a Writ of Possession with the court
  8. Once the Writ of Possession is issued by the court, submit the original Writ, along with sheriff instructions, to the correct sheriff branch
  9. Wait for the sheriff to schedule the lockout. Plan to meet the sheriff at the rental unit at the designated date and time to regain possession of the property and change the locks

These general rules do not apply in all cases, and there are additional and different steps that apply in some cases. Landlords should consult with their attorney to determine the proper steps for their individual unlawful detainer eviction case in California.

Read David Piotrowski’s “Landlord Best Practices and Eviction Overview” book. If you need help with an eviction, contact us today. We only represent landlords in eviction cases. Also, be sure to check out our reviews! We look forward to helping you. We offer a free consultation for landlords on most cases.

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What is the Effect on a 3 Day Notice to Pay Rent or Quit in California if The Tenant Tenders Rent?

 

What is the effect on a 3 day notice to pay rent or quit in California if the tenant tenders rent? To answer that question, a landlord must determine when the tenant is tendering rent.

Tenant Tenders Rent During 3 Day Notice to Pay or Quit Period

If the tenant tenders the full amount of rent during the 3 day notice to pay or quit period, the tenant has cured his rent default and the landlord should accept the payment. Any mention of forfeiture of the rental agreement in the 3 day notice to pay rent or quit would be nullified per California Code of Civil Procedure 1161.5.

California Code of Civil Procedure 1161.5 reads:

When the notice [to pay rent or quit] required by Section 1161 states that the lessor or the landlord may elect to declare the forfeiture of the lease or rental agreement, that declaration shall be nullified and the lease or rental agreement shall remain in effect if the lessee or tenant performs within three days after service of the notice or if the breach is waived by the lessor or the landlord after service of the notice.

If the landlord refuses to accept the full amount of rent tendered by the tenant, the tenant can deposit the rent into a bank or savings and loan in the landlord’s name and let the landlord know.

California Civil Code section 1500 reads:

An obligation for the payment of money is extinguished by a due offer of payment, if the amount is immediately deposited in the name of the creditor, with some bank or savings and loan association within this state, of good repute, and notice thereof is given to the creditor.

If the landlord accepts a partial rent payment during the 3 day notice period, the landlord would need to serve a new 3 day notice to pay rent or quit for the balance. The landlord cannot file an unlawful detainer action based on the original 3 day notice, if the landlord has accepted a partial rent payment.

Tenant Tenders Rent After 3 Day Notice to Pay Rent or Quit Period Expired

If a landlord accepts the rent after the 3 day notice to pay rent or quit period has expired, the landlord in effect waives his right to terminate the tenancy under the notice. If the landlord’s goal is to complete the eviction against the tenant, the landlord’s best choice would be to reject any payment of rent by the tenant after the 3 day notice to pay rent or quit period has expired. The landlord should be sure to include an “election of forfeiture” in his 3 day notice to pay rent or quit.

This rule is different in some commercial tenancies.

Read David Piotrowski’s “Landlord Best Practices and Eviction Overview” book. If you need help with an eviction, contact us today. We only represent landlords in eviction cases. Also, be sure to check out our reviews! We look forward to helping you. We offer a free consultation for landlords on most cases.

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Landlord Self-Help DIY Eviction for Los Angeles

 

As a landlord, do you just need a little self-help and guidance filling out your eviction paperwork, but you want to handle the case on your own? Our landlord self-help DIY eviction plan is the perfect fit to you!

The way it works is simple:

  1. Fill out our eviction questionnaire, attorney agreement, and credit card form
  2. Send the documents to us by email, fax, or using our online submission, along with a copy of your rental agreement (if you have one)
  3. We will fill out your initial court filing documents including the summons and complaint and email them back to you. The forms will be completed in your own name. You will be representing yourself. You will take the forms to the courthouse, file the eviction, and then have the tenant served.

Eviction questionnaire for landlords.

This landlord self-help DIY eviction plan is perfect for the landlord who wants to handle the case themselves but just needs help with the initial paperwork.

Don’t try to do your own paperwork — we see time and time again when the landlord loses a case because of incorrect paperwork, costing the landlord time and money.

Alternatively, if you prefer a full-service law firm to handle the entire eviction case on your behalf, we can help! Contact us today.

Read David Piotrowski’s “Landlord Best Practices and Eviction Overview” book. If you need help with an eviction, contact us today. We only represent landlords on eviction cases. Also, be sure to check out our reviews! We look forward to helping you. We offer a free consultation for landlords on most cases.

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Civil Code 789 – Terminating a Tenancy at Will in California

 

This article will outline the method for terminating a “tenancy at will” in California per California Civil Code 789. A tenant at will is a person who occupies the property with the landlord for an indefinite period of time and who doesn’t pay rent. Covina Manor v. Hatch (1955) 133 CA2d Supp 790. One example of a tenancy at will is when a family member allows another family member to live in the house without any type of agreement and without paying any rent.

If a tenant at will refuses to vacate the property when asked to do so by the landlord, the landlord must go through the eviction procedures. The first step in terminating a tenancy at will in California is to properly serve the tenant with a 30 day notice per Civil Code 789. If the tenant at will still doesn’t move by the expiration of the 30 day notice, the landlord will need to proceed to filing the unlawful detainer (eviction) case at the court.

Read David Piotrowski’s “Landlord Best Practices and Eviction Overview” book. If you need help with an eviction, contact us today. We only represent landlords. Also, be sure to check out our reviews! We look forward to helping you. We offer a free consultation for landlords on most cases.

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California Civil Code 1941.1 – Implied Warranty of Habitability

 

There is a warranty of habitability implied in every California residential rental agreement. This warranty of habitability, outlined in Civil Code 1941.1, exists whether or not the rental agreement specifically mentions it. To be sure, in the court case of Green v. Superior Court in 1974, the California Supreme Court held that a “warranty of habitability” is implied in all residential rental agreements. The implied warranty of habitability requires residential landlords to maintain their rented properties in a habitable condition. So, what exactly is the implied warranty of habitability outlined in California Civil Code 1941.1, and what does it mean in the landlord/tenant context?

According to California Code 1941.1,

(a) A dwelling shall be deemed untenantable for purposes of Section 1941 if it substantially lacks any of the following affirmative standard characteristics or is a residential unit described in Section 17920.3 or 17920.10 of the Health and Safety Code:

(1) Effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors.

(2) Plumbing or gas facilities that conformed to applicable law in effect at the time of installation, maintained in good working order.

(3) A water supply approved under applicable law that is under the control of the tenant, capable of producing hot and cold running water, or a system that is under the control of the landlord, that produces hot and cold running water, furnished to appropriate fixtures, and connected to a sewage disposal system approved under applicable law.

(4) Heating facilities that conformed with applicable law at the time of installation, maintained in good working order.

(5) Electrical lighting, with wiring and electrical equipment that conformed with applicable law at the time of installation, maintained in good working order.

(6) Building, grounds, and appurtenances at the time of the commencement of the lease or rental agreement, and all areas under control of the landlord, kept in every part clean, sanitary, and free from all accumulations of debris, filth, rubbish, garbage, rodents, and vermin.

(7) An adequate number of appropriate receptacles for garbage and rubbish, in clean condition and good repair at the time of the commencement of the lease or rental agreement, with the landlord providing appropriate serviceable receptacles thereafter and being responsible for the clean condition and good repair of the receptacles under his or her control.

(8) Floors, stairways, and railings maintained in good repair.

(9) A locking mail receptacle for each residential unit in a residential hotel, as required by Section 17958.3 of the Health and Safety Code. This subdivision shall become operative on July 1, 2008.

(b) Nothing in this section shall be interpreted to prohibit a tenant or owner of rental properties from qualifying for a utility energy savings assistance program, or any other program assistance, for heating or hot water system repairs or replacement, or a combination of heating and hot water system repairs or replacements, that would achieve energy savings.

In sum, Civil Code 1941.1 says that a unit “shall be deemed” to be “untenantable” i.e. uninhabitable, if the unit lacks the following or is a substandard unit described in Health and Safety Code 17920.3 or contains lead hazards as described in Health and Safety Code 17920.10: weather protection, plumbing and gas that was up to code at the time of installation and maintained in good working condition, hold and cold running water, heating that was installed per code and maintained in good working condition, electricity, including lighting, wiring, and equiment, maintained in good working condition, clean and sanitary premises, trash facilities, floors, stairways, and railings maintained in good working order, and locking mail receptacles for residential hotels. Furthermore, landlords should provide locking windows and doors, but whether locking windows and doors would be a breach of the warranty of habitability is debatable.

A landlord’s breach of the warranty of habitability is a defense to an unlawful detainer (eviction) case based on non-payment of rent, because a tenant’s obligation to pay rent and the landlord’s warranty of habitability are mutually dependent. Before a landlord files an eviction case based on non-payment of rent, the landlord should take steps to ensure the property is habitable.

Nothwithstanding the above, it is the tenant’s duty and obligation not to damage the property and must maintain ordinary care of the property per Civil Code 1929.

Note that the implied warranty of habitability applies only to residential rentals and not to commercial rentals. Note also that residential landlords cannot avoid the warranty of habitability by “contracting around it.” The warranty of habitability is non-waivable per Civil Code 1942.1, unless the landlord and tenant agreed that the tenant shall make repairs as part of the consideration for renting the property (but this is not advisble).

This article only lists some of the warranty of habitability concerns in California tenancies. A lawyer should be consulted regarding your specific case.

Read David Piotrowski’s “Landlord Best Practices and Eviction Overview” book. If you need help with an eviction, contact us today. We only represent landlords. Also, be sure to check out our reviews! We look forward to helping you. We offer a free consultation for landlords on most cases.

 

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