A Guide for Landlords on How to Evict a Tenant in California
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 month. The landlord is the “plaintiff” and the tenant is the “defendant”.
This guide will outline all of the steps necessary to evict a tenant.
1. Make sure that you 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 contract, stays after the lease is up, uses the property for an unlawful purpose, uses, manufactures, sells or possesses illegal drugs on the property, or causes a significant nuisance to other tenants. You can also evict a tenant from a month-to-month tenancy just by giving a proper notice.
A landlord is not allowed to use self-help measures to evict a tenant. This means you cannot physically lock out a tenant or cut off utilities. You must go through this unlawful detainer process. If you do use unlawful 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 the conditions to an inspector or agency.
2. Serve tenant with an appropriate notice
If you are evicting the tenant because of failure to pay rent, you must serve the tenant with a three-day notice of the rent due. You can only ask for the amount that was actually due, so utilities and penalties must be excluded. The notice must also provide the name, address and phone number of the person to whom the rent must be paid, or the name, street address and account number of the financial institution where the rent must be paid.
The three-day notice is also 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. If the violation is based on illegal activity or other violations that aren’t easily remedied, then notice is an order for the tenant to leave the unit in three days.
“Serving” the tenant means that you must try personally serving the tenant by directly handing the notice to him or her or leaving it on the ground near the tenant if he or she refuses to take it. If that isn’t possible, then you can engage in “substituted service”, allowing you to leave the notice with someone who seems reasonably competent and 18 years or older at the rental property or tenant’s place of work and mailing a copy to the tenant. If that isn’t possible, then you are allowed to “nail and mail” by posting the notice on the tenant’s door and mailing a copy to the tenant.
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.
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
Three forms are necessary to proceed with an Unlawful Detainer Complaint:
You’ll need to submit the Unlawful Detainer Complaint 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 clerk at the courthouse will give you a summons and a stamped copy of the unlawful detainer complaint.
Be sure to get a copy of the Pre-judgment Right of Possession form or print one out. This 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 Pre-Judgment 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
Just as before, the complaint and summons must be properly served to the tenant. However, you cannot “nail and mail” a summons. After you do that, 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.
If the tenant fails to respond after five business days, you can request a default judgment by filing another form with the court. The clerk will set a court date and you will have to show the judge enough evidence to show that you properly went through the eviction process and the tenant defaulted.
7. Go through the court process
You or the tenant may request a trial date, which is usually set 20 days after the request. This may vary depending on your area.
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 “answers” 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. UpCounsel has many experienced Landlord/Tenant attorneys that are willing to help you through these steps. More information about the eviction process can be found on the California Department of Consumer Affairs website.
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