Anatomy of the Eviction Process

ANATOMY OF THE EVICTION PROCESS

Eviction of a tenant is generally referred to as an “unlawful detainer” process in California. Unlawful detainer is a summary proceeding to restore possession of real property from a tenant back to the landlord. A landlord typically would initiate this process against a tenant for any of the following reasons:

● Wrongfully holding over after non-payment of rent;
● Breach of a covenant in the lease agreement;
● Assignment, sublease, or commission of waste in breach of the lease agreement; and/or
● Nuisance, including illegal controlled substance activity, unlawful weapons, or use of the premises for an illegal purpose.

Unlawful detainers have precedence over other civil actions and are generally resolved quickly because they adjudicate only the right of possession and damages incidental to the violations of the lease. For example, the unlawful detainer action may award unpaid rent through the tenant’s surrender, but will not address rent payments due for a breach or forfeited lease after the surrender.

The unlawful detainer proceeding typically begins when the landlord serves the tenant a written “Three-Day Notice” to terminate. The landlord must provide a statement of amount due (as accurate as possible, but in no case more than is due in a residential property or a reasonably estimated amount due in a commercial property). The legal requirements of the “Three-Day Notice” are strict and exacting. One minor mistake and it may be legally defective. Additionally, or in the alternative, a landlord may serve a 30/60 day notice to terminate the lease.

Upon service of the “Three-Day Notice”, the tenant has two options: 1) pay the rent and/or cure the violation; or 2) do nothing (fail to pay the rent and/or cure the violation). If the tenant pays the required rent and/or cures the violation, then the matter ends. If the tenant does not do so, then the landlord must file and serve a complaint to initiate the eviction process.

In a residential unlawful detainer action, a landlord should not accept late rent after the three-day notice is served if that landlord intends to ultimately evict the tenant from the premises because the tenant may raise this as a defense. Instead, the landlord should send written notice to tenant that the landlord has not accepted the payment and does not by holding it for any period of time (uncashed) intend to form a new tenancy, but rather is only retaining the uncashed check as proof of the debt. The rules may differ for landlords in commercial tenancies. For example, a commercial landlord may accept a partial rent payment after commencing the unlawful detainer without creating a new tenancy or waiving any rights, provided the landlord gives the tenant prior “actual notice” that the acceptance will not constitute a waiver of rights, including the right to recover possession.

The tenant has five (5) days to respond to the complaint. If there is no response, then the landlord may obtain a default judgment and a writ of possession, restoring the landlord to the premises. The amount of time from the date of the default judgment to the sheriff’s notice is typically as little as one (1) day up to seven (7) days. The time for the actual eviction by the sheriff is six typically (6) to eight (8) days. If the tenant answers the complaint, then the landlord requests a trial date, which is almost always set within twenty-one (21) days. A trial lasts anywhere from less than an hour to a day or more, depending upon the complexities of the case.

At trial, the only issue is possession. The landlord must generally prove: 1) the existence of a lease giving rise to the obligation to pay rent or to perform a covenant (i.e., establishing a landlord-tenant relationship); 2) the failure to pay the rent and/or breach of that covenant; 3) proper service of a three-day notice (or 30/60 day notice if applicable); and 4) damages. A landlord will generally need to have copies of documents and/or witnesses to support the case. If the landlord wins at trial, then the sheriff may evict the tenant, as described above, as well as obtain the following:

● Forfeiture of the lease pursuant to Code of Civil Procedure §1174(a);

● Judgment for immediate possession pursuant to Code of Civil Procedure §1174(a);

● Damages for back rent pursuant to Code of Civil Procedure §1174(a) & (b);

● Reasonable attorney’s fees pursuant to Civil Code §1717 and Code of Civil Procedure §§1032; 1033; and 1033.5;

● $600 in statutory damages for malicious holding over under Code of Civil Procedure §1174(b); and/or

● Interest at the rate of 10% pursuant to Civil Code §3287.

If the tenant prevails at trial, then the tenant stays in possession and may recover costs and fees of suit, but still generally must pay the back rent owed.

The entire unlawful detainer process can take up to thirty-five (35) days with diligent efforts by an experienced real estate attorney, or less, with cooperation or stipulation by the tenant.

Article by:
Jeffrey B. Simenton, Esq.
Principal
Goode, Hemme & Peterson, APC
6256 Greenwich Drive, Suite 500
San Diego, California 92122
Phone: (858) 587-3555
Facsimile: (858) 587-3545
Web-site: www.sandiegoattorney.com
Web-site: www.sdlandlordtenant.com
E-mail: jsimenton@sandiegoattorney.com

AVOIDING PITFALLS IN RENTING RESIDENTIAL PROPERTY

Overview

Property owners considering renting a residential property face many challenges in today’s rough and tumble marketplace. This is a primer for the inexperienced or first-time owner/landlord.

The first key decision is whether you as a landlord will be directly involved in finding, screening and selecting the tenant and continued management of your property, along with providing the appropriate documentation. The alternative is to hire a reputable property manager. Regardless of which option you choose, both require due diligence.

A. Hands-on Landlord

Choosing to be directly involved with all areas of owning and renting your property can be time consuming and will require your attention to detail. You will be responsible for screening tenants, document preparation, and maintenance and repairs of the property. You must also be familiar with and understand the landlord/tenant laws.

I have found that the easiest, most reliable and cheapest way to find a qualified tenant is by using the website. To be effective, your listing should contain recent photographs of the property along with an enthusiastic description.

When screening prospective tenants, keep in mind credit checks, income and references. Additionally, to avoid fair housing complaints and lawsuits, you should be familiar with antidiscrimination laws. Your decisions must be based on business reasons such as bad credit history, insufficient income, bad rental history, inability to come up with the deposit or some other condition of tenancy.

B. Property Management Companies

Duties of property managers include qualifying tenants, accepting rent, responding to and addressing maintenance issues, and providing a buffer for those landlords desiring to distance themselves from their tenants. Pay particular attention to Property Management Contracts which may contain pitfalls for ambiguous charges such as trip charges or contractual requirements to use specific vendors associated with the property management company. In such case, the property manager may receive an override beyond the actual cost of repair and maintenance.

C. Preparation of Lease

The landlord-tenant relationship is regulated by complicated laws governing all aspects of renting residential property. The law favors tenants and imposes numerous obligations and duties on landlords. In addition to avoiding disputes, a lease with clear provisions nudges the landlord to deal with key issues that might otherwise be overlooked before starting the tenancy.

I have found that the best form for landlords in a residential tenancy is the California Association of Realtors (“CAR”) Residential Lease. It can be used for a term or month-to-month agreement. The CAR Lease form is fair, balanced and thorough. Depending on the property, certain disclosures must accompany the lease at the inception of the term.

D. Avoid Legal Disputes

It is necessary for a landlord or property manager to be current with applicable municipal, county and state laws to address legal subjects such as evictions, notices for non-payment and claims of habitability issues. To avoid disputes and legal problems, consider the following tips:

▸ Know your rights and responsibilities under federal, state, and local law by seeking experienced legal counsel to prepare your lease and disclosures;
▸ Make sure the terms of your lease or property management agreement are clear;
▸ Keep communication open. If there is a problem – for example, a disagreement about the landlord’s right to enter a tenant’s unit – see if you can resolve the issue by talking it over; and
▸ Keep copies of any e-mails and correspondence, and make notes of conversations about any problems. For example, tenants should ask for repairs in writing and the landlord should keep a copy of the repair request and note when and how the problem was resolved.

Landlords must take carefully measured steps to ensure a profitable and problem free relationship which will ultimately keep you out of the eviction arena. Speaking as a landlord’s attorney and a current landlord, you may be assured it is not an arena you wish to visit.

Thomas B. Goode, Esq.
(858) 587-3555
tgoode@sandiegoattorney.com
www.sdlandlordtenant.com
www.sandiegoattorney.com

Real Estate Tip – May 2009

Be careful when transfering real estate to related parties.  Often times, real estate owners purchase a property in the name of a limited liability company or the name of a spouse for various reasons such as liability protection or credit problems.  Later, the owner transfers the property back to himself or herself, or into both spouses names.  Before making such a transfer, review your title policy.  The transfer may cause a loss of title coverage.  In the recent case of Kwok v. Transnation Title Insurance Company (2009) 170 Cal. App 4th 1562 that is exactly what happened.  The plaintiff purchased a property in the name of their LLC.  Later, they transfered the property to their family trust.  An easement dispute arose concerning the property and they tendered the claim to their title insurance company.  The title insurance company denied the claim on the grounds that its insured, the LLC, no longer had title.  The policy contained a provision which allowed the policy to cover a transferee if the transfer happened by operation of law.  However, since the transfer was voluntary, it was not a transfer by operation of law.  Had the plaintiffs simply dissolved the LLC (as they later did after the transfer) and taken the distribution of the property in the dissolution, the title coverage would have continued.

If the problem is addressed before the transfer, it can often be resolved.  Please keep this in mind before you transfer any real estate to a related party and it is your intent to maintain an interest in the property.

Jerry D. Hemme
jhemme@sandiegoattorney.com