• Importance of Serving Unknown Tenants in Eviction

Serving Unknown Tenants in Eviction is Critical

Several issues may arise when evicting tenants in California. A critical issue involves serving unknown tenants in eviction unlawful detainer lawsuits. For example, it is common for tenants to sublease their apartment to co-tenants without the landlord’s permission. Sometimes other family members such as a mother-in-law or other relative move in with the tenant but are not on the rental agreement. This type of situation can pose a problem when a landlord seeks to evict a tenant. If the landlord fails to serve all tenants with notice of an unlawful detainer, he/she will have to file a subsequent motion to have the unnamed tenant removed. Read on to learn more about the importance of serving unknown tenants in eviction and how A People’s Choice can help you.

How to Serve Unknown Tenants in California

Serving unknown tenants in eviction is a critical aspect of the unlawful detainer process. California Code of Civil Procedure provides methods for serving unknown tenants in eviction cases. To avoid problems down the road, it is recommended that a Prejudgment Claim to Right of Possession be served in all unlawful detainer cases.  When the unlawful detainer complaint is served, make sure the process server also serves all “unknown tenants” with a blank Prejudgment Claim of Right of Possession form and a copy of the summons and complaint.

Except as provided in paragraph (2), unless a prejudgment claim of right to possession has been served upon occupants in accordance with Section 415.46, any occupant not named in the judgment for possession who occupied the premises on the date of the filing of the action may object to enforcement of the judgment against that occupant by filing a claim of right to possession as prescribed in this section.

Serving the Prejudgment Claim to Right of Possession

It is important to note that a Prejudgment Claim to Right of Possession must be served by a licensed process server. Service of the Prejudgment Claim to Right of Possession by someone who is not a licensed process server will not be considered valid service. Once served with the Prejudgment Claim to Right of Possession, the unknown tenant will have 10 days to complete the form and file it with the court clerk. If the unknown tenant fails to file this form, he/she can be evicted. Upon filing the form, the tenant will become a defendant in the unlawful detainer action and be required to file an answer to the landlord’s complaint within 5 days after filing the form. A hearing will be held in which the judge will issue a ruling.

Consequences of Not Serving Unknown Tenants in Eviction

If the landlord fails to serve a blank Prejudgment Claim to Right of Possession form on the unknown tenant, when the sheriff arrives to enforce the “writ of possession,” a tenant whose name does not appear on the form but claims residency at the location can potentially remain in the unit. The unknown tenant can provide the sheriff with a “Claim of the Right to Possession” form. Upon receiving this form, the sheriff must cease the eviction.

If a claim of right to possession is completed and presented to the sheriff, marshal, or other levying officer, the officer shall forthwith (1) stop the eviction of occupants at the premises, and (2) provide a receipt or copy of the completed claim of right of possession to the claimant indicating the date and time the completed form was received, and (3) deliver the original completed claim of right to possession to the court issuing the writ of possession of real property.

At this point, the unknown tenant will have 2 days to pay filing fees and provide the court with 15 days rent for the unit. The court will hold a hearing 15 days after the fee has been paid. If the 15 days rent is not deposited, the court will hold a hearing 5 days after the filing fees are paid. At the hearing, the judge will decide whether the unknown tenant has a valid claim of possession. All of these proceedings unnecessarily extend the eviction process and delay the landlord obtaining possession of the premises.

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By |2018-01-18T15:46:53+00:00May 27th, 2016|Real Property|4 Comments

About the Author:

Sandra M. McCarthy, founder of A People’s Choice Inc., has worked exclusively in the legal field since 1976. She served as the 2004-2005 President of CALDA (California Association of Legal Document Assistants). She obtained a Paralegal Certificate from the University of California, Santa Barbara. During her career in the legal field, she has worked as a freelance paralegal, law office manager and paralegal studies teacher, and has co-authored numerous legal publications and written hundreds of self-help legal articles. As a registered Legal Document Assistant, Sandy is dedicated to providing affordable, low-cost, self-help document preparation services for California consumers in all 58 counties.

4 Comments

  1. Ana diaz August 24, 2016 at 6:45 pm - Reply

    I wish I read this before start the eviction process on unknown occupants is being a nightmare have unknown criminal people in my property my family is in dangers and there nothing we can do about it, how unprotected we are is terrible as a landlord I have no protection by the law.

    • Sandy McCarthy August 24, 2016 at 6:47 pm - Reply

      Yes these situations are very procedural and specific. That is why hiring a professional such as our office to help with the process is money well spent.

  2. Mitchell Jamerson March 28, 2017 at 5:47 am - Reply

    I tricked into moving out of my house my property with a fraudulent foreclosure foreclosure how do I remove the unknown tenants from my property, i moved out for three years how do I reclaim my property?

    • Sandy McCarthy March 29, 2017 at 2:51 am - Reply

      We do not offer legal advice. You should speak to an attorney to discuss your rights and legal remedies.

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