UNLAWFUL DETAINER ACTIONS
Under California law, the legal eviction process is an unlawful detainer lawsuit in which the landlord commences an action to recover possession of the premises. Where there is a lease agreement, the terms of that document (or oral agreement) may give rise to a breach of contract action in addition to the unlawful detainer action.
Where there is no contract (as when one tenant moves-out and leaves another tenant with no agreement), the person who occupies the property still has an obligation to pay for the use of the property (rent) and may be subject to immediate eviction. Local rent controls can have a dramatic effect on the respective rights of the landlord and tenant in such situations.
Tenants have a legal right right to “quiet enjoyment” of the rental property, but also owe certain obligations to the landlord. When the landlord decides to remove a tenant from a rental, the law requires that the landlord follow a strict set of rules to help ensure that the tenant’s rights are protected, while at the same time respecting landlords’ economic and possessory interests in the property through expedited court procedures.
OVERVIEW OF THE EVICTION PROCESS
NOTICE TO QUIT: Before the landlord can commence eviction proceedings, the tenant must be notified that the landlord wishes to recover possession of the premises. When the tenant fails to pay rent, this is done with a 3 day notice to pay rent or quit. There are other situations where a 3 day notice to quit is allowed, and others require a 30, 60, or even 90 day notice to the tenant.
SUMMONS & COMPLAINT – UNLAWFUL DETAINER ACTION: If the tenant does not meet the conditions of the notice (i.e. pay rent, vacate, or other condition), then the landlord can file an unlawful detainer lawsuit in the county where the property is located.
SERVICE OF PROCESS ON TENANT: After the lawsuit is filed, the legal papers must be served on the tenant. There are a variety of ways to serve the legal papers, and depending on the method used for service, the tenant will typically have 5 or 15 days to respond to the lawsuit.
DEFAULT OR REQUEST FOR TRIAL: If the tenant ignores the lawsuit and does not file a response, the landlord can go to the court clerk and obtain a judgment for possession of the property. If the defendant files an Answer, then the landlord can request a trial (which, by statute, must be scheduled within 20 days of the request).
TRIAL & JUDGMENT FOR POSSESSION: In most counties, there will be a settlement conference or other in-court proceeding before the case actually goes to trial, but if the parties do not reach a resolution, then the matter will be heard either by a judge or a jury.
SHERIFF’S EVICTION: If the landlord is awarded judgment for possession, then the landlord takes the judgment to the county sheriff, pays a fee, and the sheriff will schedule a time to physically evict the tenant(s).
DEFENSES & CROSS-CLAIMS
There are many defenses a tenant might raise against an unlawful detainer action. Landlord’s are held to a high standard when evicting tenants and must strictly comply with the unlawful detainer rules and procedures. Additional defenses may apply to a case if the landlord did not fulfill some express or implied promise, or did not properly credit rent payments, or somehow waived the provisions of the lease agreement by accepting rent or allowing certain behavior to continue.