What Happens to the Tenant’s Personal Property After the Sheriff Lockout in California?

 

This article discusses what happens to the tenant’s personal property after the sheriff has completed the lockout and the landlord has regained possession of the property in California through an unlawful detainer (eviction).

First, some background. By the time the sheriff completes the lockout and removes the tenant from the rental property, the landlord has already progressed through the unlawful detainer action and received a judgment for possession of the property. The landlord has already applied for and received a Writ of Possession from the court and has submitted the Writ and sheriff instructions to the sheriff office. The sheriff has scheduled the lockout and evicted the tenant from the property. The landlord now has possession of the property. Sometimes, unfortunately, tenants will leave personal property behind after the lockout. So, how does a landlord handle personal property left behind by the vacating tenant?

To answer this question, the Writ of Possession itself includes the following language:

“…personal property remaining on the premises will be sold or otherwise disposed of in accordance with CCP 1174 unless you or the owner of the property pays the judgment creditor the reasonable cost of storage and takes possession of the personal property not later than 15 days after the time the judgment creditor takes possession of the premises.”

The landlord must hold on to the items for 15 days after the sheriff lockout takes place and give the tenant an opportunity to reclaim the items at a mutually convenient time. The landlord can move the items and clean the property, but the landlord must maintain the safekeeping of the items during this 15 day holding period. The landlord should not allow the tenant unsupervised access to the property, nor should the landlord give a key to the tenant. The landlord should treat the ex-tenant as an unwelcome guest in the owner’s property and make an appointment with the tenant to reclaim his or her items at a mutually convenient time, while the owner or his/her agent waits at the property. The landlord should lock the door as soon as the tenant has completed removing their personal property. Legally, the landlord can charge the tenant a reasonable storage fee, but in our experience, that’s more trouble than its worth. It’s in the landlord’s interest for the ex tenant to remove the property as quickly as possible so the landlord doesn’t have to deal with it anymore.

But what happens if the 15 days comes and goes and the ex tenant hasn’t reclaimed the personal property? The landlord needs to make a reasonable determination of the total value of all items left behind by the vacating tenant. $700 is the dollar amount to keep in mind. Once the 15 days have expired, if the landlord reasonably believes the total value of the items left behind is less than $700, then the landlord can dispose of the items. But if the landlord reasonably believes the total value is $700 or more, the landlord must auction off the items in accordance with California law.

Before disposing of items or having the items auctioned, it is a best practice for the landlord to take pictures and/or an inventory of the items.

We represent landlords with eviction cases in California. Do you need help evicting a tenant? Contact the Law Office of David Piotrowski.

Be sure to check out our reviews! We look forward to serving you. We offer a free consultation on most cases for landlords with a property in our service area.

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CCP 1161(4): 3 Day Notice to Quit Video

 

CCP 1161(4), otherwise known as California Code of Civil Procedure 1161(4), discusses the 3 day notice to quit. Unlike other 3 day notices, the CCP 1161(4) notice does NOT allow a tenant to cure the violations. With the CCP 1161(4) notice to quit, the tenant must move within 3 days, and if the tenant does not move within 3 days, the landlord can file an unlawful detainer action in court. This notice must be differentiated from the pay or quit notice and the cure or quit notice.

A 3 day notice to quit per CCP 1161(4) can be served on the tenant in the following instances:

When the tenant is 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.

In other words, if the tenant is allowing other people to live at the property by assigning or subleasing, or if the tenant is damaging the property and causing the property to lose value, if the tenant is engaging in illegal activities at the property, or if the tenant is causing a nuisance, these would all be grounds for a CCP 1161(4) notice. Before serving such a notice, the landlord should be sure to have clear documentation and evidence to support the statements in the CCP 1161(4) notice.

This article is not meant to, nor does it, explain what information must be on the CCP 1161(4) notice or how the notice must be served. Both the contents of the notice and the service of the notice are critical aspects to a successful eviction case, so landlords should seek legal counsel before serving the notice.

The Law Office of David Piotrowski can create and serve a 3 day notice to quit on a tenant in accordance with the rules found in Code of Civil Procedure 1161(4).

Read more on CCP 1161(4) here.

Be sure to check out our reviews! We look forward to serving you. We offer a free consultation on most cases for landlords with a property in our service area.

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Eviction Delays in Lancaster Court

 

During the past few months, we have seen extensive delays in the Michael Antonovich  Antelope Valley (Lancaster) courthouse when it comes to processing unlawful detainer eviction cases. This has been especially true post-trial, after the landlord wins the case and obtains a judgment for possession. In particular, the clerks of the court have been unreasonably slow in issuing a Writ of Possession. A Writ of Possession in required by the sheriff to enforce the judgment and perform the lockout. So, in effect, by taking so long to issue a Writ of Possession, the clerks of the Michael Antonovich Antelope Valley (Lancaster) courthouse are delaying unreasonably the enforcement of the judgment by not timely issuing the Writ.

There is no excuse for the clerks to take 3-5 weeks to issue a Writ of Possession. When the clerk receives a Writ of Possession, it is already pre-filled out by the landlord or the landlord’s counsel. To officially issue the Writ of Possession, the clerk needs to verify that the judgment is for possession of the property in the landlord’s favor, enter the information into the court’s computer system, and stamp the Writ of Possession. This is a process that at most takes no more than 10 minutes of time.

To give context, the Los Angeles county courts used to issue a Writ of Possession over the counter. This means the clerk would issue the writ and hand it back to the landlord or his agent immediately. Other courts, such as those in Ventura county, still do that. Landlords are able to get the writ of possession while they wait at the courthouse, within just a few minutes.

Today, other courts in Los Angeles county, while they no longer issue writs over the counter, will promptly process writs normally within a few days of having received it for processing. This timeframe is reasonable and acceptable.

But, Lancaster court is a different story. We have been seeing the clerks in Lancaster take 3-5 weeks to issue a writ of possession, which, by personal knowledge, we know only takes a few minutes to process. By allowing this huge processing delay, the tenant receives several weeks more time in the landlord’s rental property, even after the landlord won the case and obtained judgment.

We encourage you to contact the court and put pressure to have writs issued in a timely and reasonable manner.

If you are a landlord, we offer a free consultation on most cases.

 

 

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Civil Code 1954, CC 1954 – Landlord’s Right to Enter Rental Unit

 

Civil Code 1954, also sometimes referred to as CC 1954, explains when and under what circumstances a landlord may enter a residential  dwelling unit in California that is currently occupied by a tenant.

The full text of Civil Code 1954 reads (text in bold for emphasis only and not part of original text):

(a) A landlord may enter the dwelling unit only in the following cases:

(1) In case of emergency.

(2) To make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed services, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors or to make an inspection pursuant to subdivision (f) of Section 1950.5.

(3) When the tenant has abandoned or surrendered the premises.

(4) Pursuant to court order.

(5) For the purposes set forth in Chapter 2.5 (commencing with Section 1954.201).

(b) Except in cases of emergency or when the tenant has abandoned or surrendered the premises, entry may not be made during other than normal business hours unless the tenant consents to an entry during other than normal business hours at the time of entry.

(c) The landlord may not abuse the right of access or use it to harass the tenant.

(d) (1) Except as provided in subdivision (e), or as provided in paragraph (2) or (3), the landlord shall give the tenant reasonable notice in writing of his or her intent to enter and enter only during normal business hours. The notice shall include the date, approximate time, and purpose of the entry. The notice may be personally delivered to the tenant, left with someone of a suitable age and discretion at the premises, or, left on, near, or under the usual entry door of the premises in a manner in which a reasonable person would discover the notice. Twenty-four hours shall be presumed to be reasonable notice in absence of evidence to the contrary. The notice may be mailed to the tenant. Mailing of the notice at least six days prior to an intended entry is presumed reasonable notice in the absence of evidence to the contrary.

(2) If the purpose of the entry is to exhibit the dwelling unit to prospective or actual purchasers, the notice may be given orally, in person or by telephone, if the landlord or his or her agent has notified the tenant in writing within 120 days of the oral notice that the property is for sale and that the landlord or agent may contact the tenant orally for the purpose described above. Twenty-four hours is presumed reasonable notice in the absence of evidence to the contrary. The notice shall include the date, approximate time, and purpose of the entry. At the time of entry, the landlord or agent shall leave written evidence of the entry inside the unit.

(3) The tenant and the landlord may agree orally to an entry to make agreed repairs or supply agreed services. The agreement shall include the date and approximate time of the entry, which shall be within one week of the agreement. In this case, the landlord is not required to provide the tenant a written notice.

(e) No notice of entry is required under this section:

(1) To respond to an emergency.

(2) If the tenant is present and consents to the entry at the time of entry.

(3) After the tenant has abandoned or surrendered the unit.

This is a lot of information to absorb, so I want to take some time to highlight the main parts of Civil Code 1954 and emphasize the parts that come up the most in the landlord-tenant context.

You will notice that Civil Code 1954 does not give a landlord/agent the right to enter at any time and for any reason, even with proper notice. A landlord must have a reason that fits into one of the above categories in order to enter the property. Two of the most common reasons would be to make repairs or to show the property to prospective new tenants when the current lease is expiring.

The most common way to give notice of entry under CC 1954 is to post a notice at the door at least 24 hour in advance. The entry can only be during normal business hours. Good leases will specify what constitutes normal business hours. But if the lease is silent on this issue, then generally accepted normal business times would apply to satisfy the business hours requirement under CC 1954.

Even though posting a 24 hour notice at the property is probably the most common way of giving the tenant notice, there are other accepted methods of giving notice. The notice can be hand delivered to the tenant, left with someone else of suitable age and discretion at the property, or mailed. But if the notice is mailed to the property, 24 hour notice is not enough — a landlord would need to give at least 6 days notice if the Civil Code 1954 notice is sent via mail.

While Civil Code 1954 gives the landlord rights to enter a dwelling unit, the landlord is prohibited from abusing this right or using it to harass the tenant.

If the landlord has a valid reason for entry and gives proper notice to a tenant under Civil Code 1954, and the tenant refuses entry, the landlord would then have the right to give a 3 day notice to the tenant. Furthermore, if the landlord goes to the property to enter and finds that the tenant has changed the locks without permission, the landlord would also want to give the tenant a 3 day notice. We discuss the 3 day notice in other blog articles.

In the case of an emergency, such as a water or gas leak, the landlord can enter at any time of the day, night, or weekend, and with no notice at all.

We offer a free, downloadable 24 hour notice template [PDF] for landlords that complies with Civil Code 1954.

Be sure to check out our reviews! We look forward to serving you. If you are a landlord, we offer a free consultation on most cases.

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CCP 1161(3): 3 Day Notice to Cure or Quit Video

 

CCP 1161(3), otherwise known as California Code of Civil Procedure 1161(3), discusses the landlord’s right to terminate a tenancy due to the tenant breaching a term of the rental agreement other than non-payment of rent. (If the tenant is behind in the rent, the landlord would instead create and serve a CCP 1161(2) notice.)

For example, a CCP 1161(3) cure or quit notice would be appropriate when the rental agreement prohibits smoking, but the tenant is smoking. Another example for when a CCP 1161(3) notice is appropriate is when the rental agreement does not allow pets, but the tenant has a pet at the property. The important thing to remember here is that if the tenant is violating a term of the rental agreement, then in most cases, the landlord will want to serve a CCP 1161(3) cure or quit notice. To reiterate, though, a landlord cannot use a CCP 1161(3) notice if the tenant is behind in the rent.

I am often asked what happens after a landlord serves a CCP 1161(3) notice and then the tenant stops the violations, but then starts up again sometime in the future. Landlords ask how long does the notice apply, and whether or not the landlord has to serve a new 3 day cure or quit per CCP 1161(3) all over again. There is no easy response because there is no law that gives a clear-cut answer as to how much time must pass before the landlord would need to give a new 3 day notice.

I generally tell landlords that if the tenant breaches the agreement again and does what was prohibited in the CCP 1161(3) cure or quit notice within a couple of weeks of serving the 3 day notice, then the landlord does not need to serve a new 3 day notice before filing an unlawful detainer. But if the tenant breaches the agreement several weeks later, then the landlord may want to exercise caution and serve a new 3 day notice before filing an unlawful detainer.  You should speak to a landlord attorney and discuss your specific case in order to come to a good solution.

Make sure the CCP 1161(3) notice clearly spells out the violation and what the tenant needs to do to comply. Also make sure that the notice is served properly.

The Law Office of David Piotrowski can create and serve a 3 day notice to cure or quit on a tenant in accordance with the rules found in Code of Civil Procedure 1161(3).

Read more on CCP 1161(3) here.

Be sure to check out our reviews! We look forward to serving you. We offer a free consultation on most cases for landlords with a property in our service area.

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