The landlord may request relief from the automatic stay for various reasons. One of the most commons reasons is to state that the tenant has no equity or interest in the property. In California, the majority opinion is that a lease is terminated for nonpayment of rent by the time the landlord files an eviction proceeding against the tenant, after having provided the tenant with proper notice. Bankruptcy courts have said that once the lease is terminated, the tenant no longer has an interest in the property.
To obtain relief from the automatic stay in tenant evictions in California, generally a motion must be filed to terminate the automatic stay. This is filed in Bankruptcy court. The motion should be supported by admissible evidence of the factual basis for the relief sought. The motion should state:
- The landlord’s interest in the property
- That the tenant is still in possession of the property
- Describe the existence, nature, and status of any existing or former lease
- Describe any defaults, such as nonpayment of rent
- Discuss the steps taken to terminate the tenancy
- If the eviction was filed before the bankruptcy filing, then the motion should include copies of the relevant eviction court paperwork.
- The motion should argue with reference to authorities that the tenant has no interest or equity in the property or that the defaults, and any subsequent actions to terminate based on them, constitute cause for relief from stay.
- The motion should affirmatively request termination of the automatic stay
Note: Normally, the order granting the termination of the automatic stay in tenant eviction proceedings are placed on hold for 14 days after entry of the order. To speed up the process, landlords may request that the stay be shortened or eliminated.
Click here for information on exceptions to the automatic stay on California evictions.
The Law Office of David Piotrowski represents landlords throughout southern California and can assist with a tenant eviction.
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