Every landlord has experienced or heard an eviction nightmare story. The process is highly technical and worse, those technicalities are strictly enforced by the court. So if there is a mistake, even a small, technical one, the court will dismiss the landlord’s case and make the landlord start the entire process over again, including the service of a new notice. All the while, the tenant is living at the property rent-free.
The eviction process (called "unlawful detainer" in California), however, can work smoothly, quickly, and stress free if it’s done right. In fact, the law actually recognizes that the landlord is suffering ongoing daily losses and gives the landlord special treatment that is not available to any other plaintiff in a lawsuit. For example, the landlord’s case is given priority on the court’s trial calendar. The case is also given priority in the clerk’s office for the processing of pleadings and the issuance of writs of possession and in the Sheriff’s office for serving the writ of possession and enforcing it (the lock-out). Timeframes in every other aspect of the case such as discovery and motions are shortened.
The upshot is that the eviction process can result in the tenant being lawfully removed from the premises in a month or less if the case goes by way of default or in about six to seven weeks if the case is contested through trial. That may seem like a long time when a landlord’s property is not generating any rent. However, when one considers that an ordinary, non-eviction lawsuit in San Diego County can take sixteen months or more to litigate, unlawful detainer cases, by comparison, move at light speed. In addition to returning possession of the premises to the landlord, the judgment will include all past due rent, costs and even the landlord’s attorney’s fees if the landlord has a written agreement with the tenant that has an attorney’s fees provision (most form lease agreements do).
In an effort to de-mystify the unlawful detainer process, the following is a brief procedural overview of the eviction case:
– Serving Notice: The most common notice is the 3-day notice to pay rent or quit which the landlord can serve when the tenant has failed to pay rent by the time specified in the lease. Other common notices are the 30-day or 60-day notice to quit which are served when the landlord elects to terminate a month-to-month lease. When terminating a month-to-month lease, however, the landlord must be careful. San Diego County has an eviction control ordinance which limits the landlord’s authority to terminate month-to-month leases and requires certain language in the notice. A 3-day notice to pay rent also has requirements that must be strictly complied with. Failure to abide by those requirements could result in dismissal of the landlord’s case and the landlord having to start over.
A 3-day notice or a 30-day or 60-day notice may be required to initiate an eviction case against a tenant who remains after foreclosure. A 3-day notice is also required when the landlord seeks to evict a tenant who is not complying with other terms of the lease besides the payment of rent. For example, if a tenant has more people living at the property than the lease allows or has pets not permitted by the lease, the landlord may serve a 3-day notice requiring the tenant to comply with the lease or move-out. The correct notice to use depends upon the facts of each case. If the tenant fails to comply with the notice within the time period contained in it, then the landlord may file an eviction case.
Bear in mind, the law is very strict about the requirements for the content of the notice and the manner of its service on the tenant. Inexperienced landlords can make mistakes on the notice which could result in the landlord having to start over at some later point in the process. If you are not experienced with unlawful detainer cases, you may want to have an attorney prepare and serve the notice.
– Filing the Lawsuit: When the period of time set forth in the notice expires-whether it’s 3, 30, or 60 days-and the tenant remains, the landlord is permitted by law to file the eviction case the day after expiration of the notice. Note: If the 3-day notice is for nonpayment of rent, do not accept rent if you want to evict the tenant. Acceptance of rent after expiration of the 3-day notice is a waiver by the landlord of his right to evict based upon that particular default in the payment of rent. If you accept rent, you will have to wait for a future default in rent to evict the tenant.
Once you file the lawsuit, it has to be served on the tenants in a manner authorized by law. When the tenant is served, he has 5 days to file an Answer to the unlawful detainer Complaint. If a lawsuit is necessary, it is strongly recommended that you have a lawyer. Any eviction attorney can tell you stories of sitting in court, watching self-represented landlords fumble through their case presentation, with an inadequate complaint and/or notice, only to have the judge dismiss their case. Worse, if the tenant shows up with a lawyer, the court could give judgment to the tenant and award the tenant his attorney’s fees and costs! In such a circumstance, the landlord will also have to start over and go out of pocket to pay the tenant’s attorney’s fees and costs.
– Tenant Response: If the tenant timely files an Answer, the landlord should immediately request that the case be set for trial. By law, the court must set the case for trial within twenty days of the landlord’s request. If the tenant fails to file an Answer, then the landlord should immediately file a request to enter the tenant’s default together with judgment and enforcement papers and all applicable court and Sheriff’s costs so that the lock-out can occur as quickly as possible.
– Trial: If the tenant answers the Complaint but then does not vacate the premises, a trial will be necessary. Someone with personal knowledge of the lease and the facts that support eviction will have to be present to testify. This person is usually the property owner or a property manager. At trial, the landlord can obtain judgment for possession of the premises plus all past due rent through the date of trial, costs, and attorney’s fees if authorized by the lease agreement. Once the court gives judgment to the landlord, the process is not over. The landlord must present judgment and enforcement papers to the court and Sheriff that authorize the lock-out.
– Issuance and Service of Writ of Possession; Lock-Out: Whether by default judgment or judgment after trial, enforcement of the judgment begins with the landlord obtaining a writ of possession from the court clerk. Essentially, the writ is authorization from the court to the Sheriff to conduct the lock-out. The writ is then given to the Sheriff who serves it, personally or by posting, on the tenant. After service of the writ, the tenant has five days to move-out. If the tenant fails to move out within that time, the Sheriff returns to the premises, removes the tenant and restores possession of the premises in the landlord. The Sheriff gives a receipt for possession to the landlord who is then free to re-rent the premises. Once the lock-out occurs, the tenant no longer has any right to be on the premises and the right of possession is given back to the landlord .
– Money Judgment: As stated above, part of the landlord’s remedy in an unlawful detainer action is a money judgment against the tenant for all rent, costs, and attorney’s fees if authorized by a written lease. This money judgment can be collected just like any other judgment. Often times, the judgment is uncollectible in the near term; the tenant needs some time to get back on his feet before any meaningful collection can occur. In other cases, collection efforts may prove beneficial right away if the tenant has assets or is working. Each case is different. Mr. Burns will collect the money judgment for the Client on a percentage basis.
