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Published: 2008-03-26

The Unlawful Detainer Process



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." Unless you are experienced, 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 an attorney handle it or give the job to 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.

You will find sample eviction and proof of service forms in the "FREE STUFF" menue herein.



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 person who served the notice;
  • 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 Marshal 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 Marshal for execution. At that time, the Marshal is also issued instructions to execute and the Marshal's execution fee is paid.

The Marshal then goes to the property and posts a 5-day notice on the door. This notice advises the tenants that the Marshal 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 Marshal 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.