An Eviction Attorney Knows the Best Solution of Tenant Eviction

A Landlord’s Guide on How to Evict a Tenant in California from an experienced Eviction Attorney 

Evicting a tenant under California law is a time-consuming, multi-step process.  The only way to legally evict a tenant is by filing a lawsuit.  California calls eviction lawsuits “Unlawful Detainer” actions, and you should expect the entire process to take about one to two months.  The landlord is the “plaintiff” and the tenant is the “defendant”. In order to successfully initiate an Unlawful Retainer, you’ll need an experienced eviction attorney.

1. You need to have Legal Grounds to Evict the Tenant

Before you can proceed with evicting a tenant, you must have a valid reason for doing so. Evictions are warranted when a tenant fails to pay rent, damages property, violates the terms of the rental agreement, stays after the lease is up, uses the property for an unlawful purpose, causes a significant nuisance to other tenants or if the tenant uses, manufactures, sells or possesses illegal drugs on the property.  You can also evict a tenant from a month-to-month tenancy just by giving a proper notice.

In California you must go through the unlawful detainer process.   A landlord is not allowed to use “self-help measures” to evict a tenant. Which means you cannot physically lock the tenant out or shut off the utilities. If you do use prohibited methods to evict the tenant, they can sue you for damages and you can be penalized up to $100 per day that you used those methods.  It is also illegal for you to file an unlawful detainer action in retaliation for the tenant exercising a right or complaining about uninhabitable conditions at the property to an inspector or agency.

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2. Serve Tenant with the Correct Notice

If you are evicting the tenant because of failure to pay rent, you must serve the tenant with a three-day notice to pay rent or quit.  You can only ask for the amount of rent that was actually due, no late fees, utilities, or the outstanding balance of a security deposit.  The notice must also provide the name, address, phone number and usual days and hours of the person to whom the rent must be paid, or the name, street address and account number of the financial institution within 5 miles of the property where the rent is to be paid.

A three-day notice to perform covenant is used when the tenant has violated a provision of the rental agreement.  If the violation is correctable, like having a pet when no pets are allowed, then you must give the tenant three days to remedy the problem.  A three-day notice to quit is served If the violation is based on illegal activity or other violations that aren’t easily remedied, this notice is required the tenant to leave the unit in three days.

If you are evicting a tenant from a month-to-month lease, you will need to give the tenant a 30-day notice to move out.  If the tenant has lived in the unit for more than one year, the notice must be extended to 60 days.

“Serving” the tenant means that you must try personally serving the tenant by directly handing them a copy of the notice or leaving it on the ground near the tenant if they refuse to take it.  If the tenant is not available you can “substitute service” which means you can leave a copy of the notice with someone who seems reasonably competent and 18 years or older at the rental property, then mailing a copy to the tenant.  If no adult is at the property, then you are allowed to “post and mail” by posting the notice on the tenant’s door and mailing a copy to the tenant.

3. Wait for the Notice to Expire

Depending on the type of notice, you’ll have to give the tenant a certain amount of time to remedy the grounds for eviction.  A notice based on failure to pay rent requires that the landlord to give the tenant three days to correct the problem and pay rent.  A 30-day notice on a month-to-month or expired lease requires you to wait 30 days before you proceed with filing a lawsuit.

4. File all Legal Documents with the Court

These forms are necessary to proceed with an Unlawful Detainer Complaint:

You’ll need to submit the Summons, Unlawful Detainer Complaint, Pre-judgment Right of Possession and the Civil Case Cover Sheet to the courthouse in the county where the rental property exists.  It’s really important that those forms are factually accurate, so be meticulous when filling them out.

The  Prejudgment Right of Possession form is used when someone not listed on the rental agreement is living in the unit.  You cannot legally evict a person living in a unit that is not named in the complaint, so you’ll need to serve those unnamed occupants with a Prejudgment Right of Possession form and a copy of the complaint and summons.  This will automatically make them a defendant in the lawsuit.

5. Serve the Tenant with the Proper Legal Documents

The Summons, Unlawful Detainer Complaint and Prejudgment Right of Possession must be properly served to the tenant. You cannot “nail and mail” a Summons.  After proper service is complete you will file a proof of service with the court.

6. Wait for the Tenant to Respond to the Lawsuit

The tenant has five business days to file a response to the court to challenge the lawsuit. The unnamed occupants have ten business days to file a response when the Prejudgment Right of Possession is served.

If the tenant fails to respond you can request a default judgment by filing another form with the court.

Court Process

7. Go through the Court Process

You or the tenant may request a trial date, which is usually set approximately 20 days after the request is filed.

The tenant may respond to your lawsuit by filing one of many legal objections to the notice, service, or the actual complaint.  An objection to the method of service of the notice or complaint is called a Motion to Quash Service of Summons and an objection to the grounds for eviction is called a Demurrer.

You will have to respond to these objections in writing.  If the court sides with the tenant, you’ll be granted “leave to amend”, which is a second chance to show that you have a valid case or that you properly gave notice and/or served the tenant.  At this stage, if you lose a second time, your lawsuit may be dismissed and you will have to start all over again.  This part is particularly tricky, and it is advisable that you seek assistance from an attorney.

If the tenant files an answer to the complaint, then a trial date will be set. Both sides will be able to present evidence and explain their case to the judge at trial, so collect as much documentation as possible to show that this eviction is warranted.

If the judge rules in your favor at the trial, the court will issue a Writ of Possession, which gives the sheriff the power to physically lock the tenant out of the rental property if they do not voluntarily vacate within five days.  Depending on the circumstances and provisions in the rental agreement, the court may also order the tenant to pay any unpaid rent, attorney’s fees, or up to a $600 penalty.

Evicting a tenant under California laws is a complicated process an experienced Landlord/Tenant attorney can help you through these steps.

If you need professional assistance with an eviction, contact us today

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