3 Day Notice to Vacate | 30 Day Notice to Vacate | 60 Day Notice to Vacate | 90 day Notice to Vacate | Unlawful Detainer
JUDGMENT AND WRIT / REGAINING POSSESSION OF THE PROPERTY / POST-POSSESSION ISSUES
Renting Property that is now in Foreclosure / The Myths About Evictions
STEP 1: THE TERMINATION NOTICE:
In order to evict a tenant, you must first correctly fill out and properly serve a termination notice. The most common notices are the ” Three Day Pay or Quit” and the “Thirty Day Termination of Tenancy.” If you are not certain how to file out the proper documents, you should hire a lawyer to advise you what type of notice to use and how to fill out the notice. Any mistake can invalidate the notice and force you to start over again.
There are a number of ways to properly serve the notice. Again, unless you are experienced at serving notices, you should have hire a licensed process server. Keep in mind that those tenants who cannot be “personally” served must be served “constructively” or by way of “substituted” service. The rules for these types of service are different and it is essential that the landlord comply with them in every detail.
Generally, the day of the service of the notice is not counted and the period of the notice (i.e. 3 days, 7 days, 30 days, etc.) is then counted to determine when the notice period has expired. If the law requires that the notice also be mailed to the tenant, you must add 5 days to the notice period to allow for mailing.
STEP 2: THE “UNLAWFUL DETAINER” LAWSUIT:
If the tenant does not voluntarily vacate after the service and expiration of the notice, you must prepare an “Unlawful Detainer” lawsuit. This lawsuit must be filed with the court, served on the tenant and prosecuted to a judgment.
A Complaint is prepared and filed with the Court. A copy of the Complaint must then be served on the tenants. Once served the tenants have five days to file and serve an Answer to the Complaint.
STEP 3: ANSWER OR DEFAULT:
After service of the Complaint the tenants have five days to file and serve an Answer. If they answer, the matter is “contested” and a trial must be set. If they do not file and serve an Answer, their default may be entered and judgment may be obtained either by way of a short uncontested trial or by way of a declaration.
TENANTS’ DEFENSES: The most common defense to an unlawful detainer action based upon failure to pay rent is that the premises lack the minimal standards of habitability. The classic defects are lack of heat, plumbing problems, missing screens, leaking roof, non-functional appliances and electrical outlets and infestations. Additionally, anything cited in a health department notice can constitute a habitability defect. If you do not maintain the premises, the tenant may not have to pay the rent.
STEP 4: TRIAL OR DECLARATION FOR DEFAULT JUDGMENT:
In order to obtain a Judgment, it will be necessary for the landlord to present the facts of the case to the Court. This must be done whether or not the tenants put up a defense. At minimum, the landlord will have to establish that there was a written or oral landlord/tenant relationship, that the relationship has been properly terminated with a properly served notice, and that the landlord is entitled to possession of the property and (in most cases) rent damages.
UNCONTESTED MATTERS: If the matter is uncontested, the facts may be presented to the court either in a short court appearance or by way of a written declaration for default judgment without the necessity of an appearance.
CONTESTED MATTERS: If the case is contested, you will have to go to trial. You can expect that trial will take an average of two hours of your time. Generally, you will need to bring the following to trial:
a. The Proof of Service (to prove the tenant was servered properly);
b. Your rent receipts (pay or quit cases);
c. All written complaints and correspondence with the tenant concerning problems with the unit (pay or quit cases);
d. All receipts and repair records for the unit (pay or quit cases);
e. The evidence which backs up your reason for evicting the tenant (30 Day Notice Cases).
STEP 5: JUDGMENT AND WRIT:
After the facts of the case have been presented to the court, the court enters a Judgment either for the landlord or for the tenant. The Judgment is a document prepared by the landlord or his attorney and presented to the court for the Judge’s signature.
The court clerk then issues a “Writ Of Execution” based on the judgment. This is the document which empowers the Sherrif’s Department to execute upon (collect on) the judgment.
Note: Unlawful Detainer lawsuits are limited in the relief available. The judgment may only provide for possession of the premises, forfeiture of the rental agreement, past due rent up to the date of judgment, court costs and costs of service of the summons and attorney fees if a written rental agreement provides for such.
STEP 6: REGAINING POSSESSION OF THE PROPERTY:
After issuance of the Judgment and Writ, the Writ is delivered to the Sherrif’s Department for execution. At that time, the Sherrif’s Department is also issued instructions to execute and the Sherrif’s Department execution fee is paid.
The Sherrif’s Department then goes to the property and posts a 5-day notice on the door. This notice advises the tenants that the Sherrif’s Department will return in five days to remove the tenants from the premises if they are not gone by that time.
At the expiration of the 5-day period, the landlord meets the Sherrif’s Department at the property. If the tenants are still on the property, they are removed at that time, the tenants are instructed not to return, and the landlord is then in a position to change the locks.
STEP 7: POST-POSSESSION ISSUES
SECURITY AND RENT DEPOSITS: Landlords must account for all deposits within 21 days of obtaining possession of a unit. Failure to properly account may result in a Small Claims judgment against you for the full amount of the security deposit (even if you properly applied some or all of it) and a $200 penalty.
ABANDONED PERSONAL PROPERTY: Personal property left on the premises must be disposed of in accordance with the California statutes covering abandonment of personal property. The process begins with the service of a Notice Of Abandonment and ends with an auction.
COLLECTION OF MONEY JUDGMENTS: Collection of the money part of the Judgment is beyond the scope of this article. Suffice it to say that virtually all income or property is subject to execution. The two most common methods of collection are wage garnishment and execution on bank accounts.
TENANT’S POST TRIAL MANEUVERS: Tenants sometimes try to delay their eviction by filing a Chapter 7 or Chapter 13 Bankruptcy just prior to the date of the lockout. After a tenant files Bankruptcy you must get an order for “relief from automatic stay” from the U. S. Bankruptcy Court.
The Myths About Evictions
Landlords try to scare you into moving, and not fighting it, because they know how much hassle you can give them, and how expensive it can be to get you out. Here are the common myths:
(1) The landlord CANNOT lock you out, remove your property, remove doors or windows, or turn off utilities to get you out, in lieu of court; Civil Code 789.3 prohibits that [for residential tenants] and makes the landlord liable to you for actual costs plus $100 per day that it continues, and the police will back you on this one [Penal Code 484].
(2) The landlord CANNOT have the police or Sheriff arrest you for overstaying your welcome, instead of going to court. The Sheriff may be used to serve the eviction papers, but anything beyond that awaits the court’s determination, first.
(3) The landlord CANNOT barge in and start doing major construction to make it impossible to live there, or otherwise interfere with your quiet enjoyment to force you out; Civil Code 1940.2 prohibits that, and makes the landlord liable for $2000 for each such attempt, in addition to your actual losses. The police will back you on this one, too [Penal Code 484].
(4) The landlord CANNOT threaten to report you to immigration authorities or other law enforcement, nor make any other threat to get you out. Civil Code 1940.2 prohibits that, and makes the landlord liable for $2000 for each such attempt, in addition to your actual losses. The police will back you on this one, as well [Penal Code 518].
Renting a Property that is now in Foreclosure
If you are the tenant of a property owner who is facing foreclosure, or has lost the property through foreclosure, there are thousands like you through California faced with the same dilemma.
The bank does not have to talk to you, work with you, consider your family or children’s education, or even try to sell the property to you. You can’t pay them for more time, or even expect courtesy when they want to show the property to new buyers or realtors while you’re still living there. Out! Out! Out! is what you get, in most instances.
Occasionally, a bank will offer “cash for keys,” where they send you some money to move out without a fuss.
The real zinger for tenants of the former landlord is that you sign off your rights in exchange for the money. What rights? You have the right to get your full security deposit back from the bank, because it is the new owner and the current owner owes you your deposit, even if they never got it from the old owner. [The exception is where the former landlord pays you the full deposit beforehand.] The bank has the obligation to pay you the full deposit, not just a part, so your “cash for keys” agreement has you giving up the rest of your deposit, and then you have to find your former landlord, who may very well have filed bankruptcy.
The time line on a foreclosure is this: Usually after a few months of mortgage delinquency, the bank records. posts, and mails a Notice of Default, giving the owner 90 days to bring the account current. If that doesn’t happen, the next step is the bank giving a 30-day Notice of Trustee’s Sale, which is also recorded, posted, and mailed. The trustee’s sale is the auction where the property is sold to the bank or a new buyer. Just before the trustee’s sale is the time when many property owners file for bankruptcy, because they will be hit with a huge tax bill when their mortgage is no longer their debt – the IRS sees it as “income.” Therefore, owners file bankruptcy, which stalls the eviction for about a month or so until the bank can get the bankruptcy judge to let them proceed with the foreclosure and eviction.
The time line on the eviction is this: After the foreclosure sale, it takes a few days to record the deed, and then a Notice to Quit [or similar title] is given to the occupants of the property. The notice gives 3-days to the former owner, but often includes a separate Notice to the tenants, giving the statutory 30 days to move out. This is like any other eviction notice, in that it has to expire before they can file the eviction case.
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