CCP 1161(4) Termination of Tenancy Based on Nuisance in California

 

California Code of Civil Procedure 1161(4) (also referred to as CCP 1161(4)) allows a landlord to evict a tenant if the tenant is causing a nuisance at the rental property.

CCP 1161(4) states that a person is guilty of unlawful detainer (and can be evicted) when:

4. Any tenant, subtenant, or executor or administrator of his or her estate heretofore qualified and now acting, or hereafter to be qualified and act, assigning or subletting or committing waste upon the demised premises, contrary to the conditions or covenants of his or her lease, or maintaining, committing, or permitting the maintenance or commission of a nuisance upon the demised premises or using the premises for an unlawful purpose, thereby terminates the lease, and the landlord, or his or her successor in estate, shall upon service of three days’ notice to quit upon the person or persons in possession, be entitled to restitution of possession of the demised premises under this chapter.  For purposes of this subdivision, a person who commits or maintains a public nuisance as described in Section 3482.8 of the Civil Code, or who commits an offense described in subdivision (c) of Section 3485 of the Civil Code, or subdivision (c) of Section 3486 of the Civil Code, or uses the premises to further the purpose of that offense shall be deemed to have committed a nuisance upon the premises.

The section of CCP 1161(4) dealing with nuisance is highlighted above. (CCP 1161(4) can also be used to evict a tenant who is participating in illegal activities at the property or assigning/subleasing without permission. These reasons for eviction under CCP 1161(4) are discussed elsewhere).

CCP 1161(4) is a powerful tool for the landlord because it allows the landlord to evict a tenant without providing the tenant an opportunity to “cure.” CCP 1161(4) is vastly different from CCP 1161(2) and CCP 1161(3) because both of those laws gives the tenant an opportunity to fix their violation. For example, CCP 1161(2) says the tenant must either pay the rent or move within 3 days. Similarly, CCP 1161(3) says the tenant must either cure their rental agreement violation or move within 3 days. Conversely, CCP 1161(4) says the tenant must move within 3 days (with no option to fix the violation).

Since an 1161(4) notice based on nuisance cannot be cured by the tenant, the notice should unequivocally state that the tenancy is being terminated and the tenant does not have an option to fix the violation. Because CCP 1161(4) is very strict, courts will analyze the landlord’s claim of nuisance to a relatively high level, asking the question whether or not the landlord’s issue really constitutes a nuisance to support an eviction under CCP 1161(4). So, what constitutes a nuisance to support an unlawful detainer under California Code of Civil Procedure 1161(4)?

A nuisance is an act that is injurious to health or indecent or offensive to the senses or that obstructs the free use of property so as to interfere with the comfortable enjoyment of life or property (Civil Code 3479). Some examples include unlawful controlled substances offenses, unlawful weapons or ammunition offenses, or using the property to further such an offense. Dogfighting and cockfighting is also deemed a nuisance. If the landlord is able to obtain a police report or arrest report showing any of these offenses, it will greatly assist with the CCP 1161(4) case.

Because of the relative high level of scrutiny applied by the courts in CCP 1161(4) nuisance cases, the landlord should not base his unlawful detainer off of a single nuisance occurrence or a relatively minor nuisance issue. The landlord is more likely to be successful if he first sends a warning notice to the tenant and then serves a 1161(4) nuisance 3 day notice if the tenant continues causing a nuisance at the property. Another question for the landlord to ask is whether or not the nuisance is “curable.” If it is, perhaps the landlord should utilize CCP 1161(3) instead, giving the tenant 3 days to cure his violation before commencing the unlawful detainer action.

This article does not discuss the contents of the 3 day notice under CCP 1161(4). The courts are very strict on the contents of the notice and the way it is served. Landlords are urged to hire competent legal counsel.

Read David Piotrowski’s “Landlord Best Practices and Eviction Overview” book. If you need help with an eviction, including drafting a valid CCP 1161(4) notice and serving the tenant, contact us today. Also, be sure to check out our reviews! We look forward to helping you. We offer a free consultation on most cases.

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