Most California unlawful detainer proceedings are filed by the landlord because the tenant has failed to pay the rent. No matter what the reason, before a landlord can file an unlawful detainer proceeding to evict a tenant, the tenant’s right to possession of the property must be terminated. Notice of this termination must be provided in writing and a landlord must follow strict procedures to legally obtain possession of the premises. The unlawful detainer process can take from 20 to 45 days, and sometimes more depending upon the court branch in which the case is filed.
There are many reasons a landlord may want to terminate a renter’s tenancy. They include:
Generally speaking, the type of situation will determine the type of notice required to be given to the tenant. In California, when rent is unpaid, a 3-day notice can be provided to the tenant. In situations when the tenant has paid the rent but the landlord wants the tenant to move, a 30-day notice is required. Tenancies over one year require 60 days notice. (This rule had previously expired effective 1/1/06, but became effective again 1/1/07.) With governmental subsidized tenancies, a longer 90-day notice is required. Certain areas may also be under rent control which imposes specific restrictions and regulations between landlords and their tenants.
If after the expiration of the notice period the tenant remains in the property, the landlord must then proceed with filling the necessary court documents to obtain a court order for possession. This process is known as an unlawful detainer proceeding. In this process, the tenant must be served with the complaint. He or she then has five days to file response. Often tenants will file a response merely to delay the proceeding. If a response to unlawful detainer is filed, the matter will most likely have to proceed to a court trial before possession can be formally obtained.
Even after the court gives the landlord a judgment for possession of the property, some tenants may still remain in the property until the absolute last moment possible. Once an unlawful detainer judgment is obtained, the landlord will need to obtain a Writ of Possession that is served on the tenant by the Sheriff. The Sheriff will set a specific date on which the property will be turned over to the landlord. If the tenant remains in the property when the Sheriff arrives, the Sheriff will physically remove the occupants of the property and the landlord can make arrangements to change the locks.
Landlords are required to provide a tenants with formal legal notice to vacate premises before they can file an unlawful detainer action case. The tenant must receive written notice of the reason they are being evicted. The reason can be for non-payment of rent, noise, illegal activity or simply because the landlord want to terminate their month-to-month agreement. If the tenant has lived in the property for less than one year, the landlord must provide a tenant with a 30-day notice. If the tenant has resided in the rental for more than one year, the tenant must be provided with 60-days notice to vacate. The notice must be properly served on the tenant and the deadline to cure (or fix) the problem (if it can be fixed) must expire before an unlawful detainer complaint is filed. If the tenant resides in a county or city that has rent control, there may be other steps required.
If the tenant files an answer with the court, the landlord must then request the court schedule a trial. This is done by filing a Request/Counter Request to Set Case for Trial -Unlawful Detainer with the Superior Court Clerk. Once received, a trial is usually set within 21 days of the request.
If the tenant does not file an Answer to the complaint or other type of written response with the court, the landlord can ask the court to enter a default judgment. When requesting a default judgment in an unlawful detainer/eviction case, the landlord must serve the tenant with a copy of the Request for Default. Once the court clerk grant’s the default, the landlord can then complete and file a Judgment for Unlawful Detainer and submit a Writ of Execution so that they can get legal possession of the property.
The Writ of Execution gives the landlord the right to retake possession of the property. Once the court has issued a Writ of Take, this document should be taken to the local Sheriff’s office. The Sheriff will need to serve the Writ on the tenant and provide the tenant with notice to move out within 5 days. The Sheriff will give the landlord an exact date and time that the tenant will be required to leave the property.
A tenant can delay a scheduled lock-out by requesting the court to temporarily delay the process. This is called a “stay of execution” and is often used by clever tenants to further delay the process. The tenant must file the stay as soon as they receive the Sheriff’s notice giving the 5 days to leave the property. If the judge grants the stay, the eviction will be delayed. During this time, the tenant will have to continue to pay rent if the tenant remains having control over the property during the period of the stay.
You will need to first identify what assets a tenant may have in order to try and collect a money judgment. If you know where the tenant works, you can garnish the tenant’s wages from their employer. If you know where the tenant has a bank account, you may also be able to obtain a bank levy. All of these actions have an additional costs associated with them. It is important to decide whether or not you will be successful in these collection attempts so that you are not spending good money after bad.