The California eviction process generally begins with service of a written notice to the tenant. If the lease has expired and the landlord wishes to evict the tenant who has lived on the property for less than one year, then a 30-day written notice is required, which may be served by certified mail. If the tenant has lived on the premises for more than one year, then the California eviction notice is 60-days.
A 3-day notice is required for the following types of evictions:
- Nonpayment of rent
- Breach or noncompliance with a material provision in the lease agreement
- Creating a nuisance such as by accumulating trash and debris on the property
- Conduct that materially affects the health and safety of others
- Unlawful activity on the premises
Service of Notice
The 3-day notice to vacate must be served personally on the tenant, on a subtenant of sufficient age and discretion and by mailing the California eviction notice; or by serving the tenant at his or her place of business. If none of these can be accomplished, then alternative service can be accomplished by affixing a copy to the apartments’s door or leaving it in a conspicuous place and mailing a copy.
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The eviction notice must state the amount of rent owed, the date it must be paid, the provision of the lease that has been violated and when it must be remedied, and that an unlawful detainer lawsuit will be filed if there is noncompliance. It must also be signed. The landlord must be sure that any grace period for paying the rent has passed or the notice may be deemed insufficient. Further the notice should declare that on a specific date, the lease will forfeited for noncompliance. The 3-day period begins the day after the notice is posted or is received by the tenant.
If a tenant has committed a material breach of the lease, the landlord has the option of automatically terminating it without any opportunity for the tenant to remedy the breach.
Eviction by Authorities
In certain jurisdictions, the local prosecuting attorney may initiate an unlawful detainer action if the tenant has been charged with certain crimes and after the landlord has been given a 30-day notice to evict the tenant. In these circumstances, the tenant must be notified of the eviction and advised of possible defenses.
Should the tenant refuse to vacate, pay the rent or cure the material breach of the lease, the landlord must file and serve a Summons and Complaint for Unlawful Detainer. This is a special proceeding in that the tenant has only 5 days to respond instead of the usual 30 days in most civil actions. It must be served on the tenant by any adult who is not a party or representative of the landlord, though a process server is usually used. If the tenant does not respond in 5 days, the landlord must request a default judgment and obtain a Writ of Possession instructing the sheriff to forcibly remove the tenant. A default judgment is not given automatically by the court.
If the tenant does respond, then the court will schedule a trial that must be set within 20 days. The tenant can request a jury trial but most cases are heard before a judge only since a jury trial request can be costly and the tenant must deposit jury fees before the trial date. Also, the tenant can use the discovery process by posing questions and requests for documents on the landlord who must comply within 5 days of receiving the requests.
On the trial date, the parties are given an opportunity to settle the matter at a conference or the trial may go forward.
There are a number of defenses a tenant can allege at a hearing including the following:
- The notice was deficient such as by demanding more rent than is owed or was not properly served.
- The unit was uninhabitable.
- The landlord used self-eviction methods.
- The eviction was in retaliation for the tenant having complained about the premises’ condition or for having joined a tenant’s union.
- The eviction was for a discriminatory purpose such as the tenant’s religion, national origin, marital status, pregnancy, having children or becoming disabled.
At the hearing, both sides can present evidence supporting their positions though the burden of proof is on the landlord. A party can present live witnesses, photographs, and other documentary evidence but care should be taken that sufficient copies of any documentary evidence (at least 5) be provided since the court clerk, judge and the opposing party must have copies.
If the landlord prevails, a Writ of Possession will be issued to the landlord. This must be given to the sheriff to serve on the tenant who has 5 days to vacate or be forcibly removed by the sheriff. The court judgment may also include an order for the tenant to pay the landlord’s court and service costs and any overdue rent or other damages.
If the tenant prevails, he or she can remain but there may be conditions. If the court determines there was a valid defense or claim of at least partial inhabitability, then the tenant may be ordered to pay a reduced rent and that all future rents be reduced accordingly until the condition is fixed.
Relief from Forfeiture
In rare cases, a tenant who files a petition for Relief from Forfeiture before the landlord gains possession of the property may convince a judge to allow him or her to remain. This is based on a showing of severe hardship to the tenant who must also show that the entire rent can be paid by a certain time or that the breach of the lease can be remedied by a certain date.
Stay of Eviction
Alternatively, a losing tenant can request a stay of the eviction if presented in writing to the court and served on the landlord within 24 hours of the request. If granted, the tenant must still pay the daily rent for each day held over. The court can grant additional stays but the aggregate time is no more than 40 days.
Writ of Possession
As indicated, the tenant has 5 days to vacate the premises after service of the writ, which must be served within 3 days of receipt by the sheriff.
If the tenant leaves any personal belongings behind, the landlord must retain or store the items for 18 days before notifying the tenant that they will be disposed of or sold if not claimed along with payment of any storage and removal costs.
These California eviction procedures will vary for tenants on active military service if their ability to pay rent is affected by their military service and whose rent is $2,400 or less per month. Special eviction rules also apply for tenants who live in tax credit units.
Eviction in California can be frustrating for both the landlord and the tenant. To make a tough situation a little smoother, it is important that the landlord follow all the procedural steps as closely as possible. This is will also ensure a successful outcome, and protect the landlord from penalties for acting outside the law.