Landlords: Serve the Tenant with the Papers & File the Proof of Service (Step 4 of 7)
SERVE THE UNLAWFUL DETAINER PAPERS
You have to serve the tenant with the unlawful detainer papers. The tenant can be served in 1 of these 3 ways:
|Personal Service||The server gives the tenant the Summons and Complaint in person. If the tenant will not take the papers, the server can tell the tenant that he or she is being served and leave the papers as close to the tenant as possible.|
|Substituted Service||If the tenant is not at home or work when the server comes, the server can give the court papers to a competent member of the household where the tenant lives or to someone works. The server must also mail a copy of the Summons and Complaint to the tenant at the address where the papers were left. Service is considered complete on the 10th day after mailing of the papers to the tenant.
The landlord cannot use this type of service until the server tries at least 2 or 3 times, on different days and at different times of the day, to serve the tenant in person. This is called “due diligence.” The server will have to fill out a form that says what days and times he or she tried to serve the tenant in person and that he or she exercised “due diligence.”
|Posting and Mailing||The landlord can only use this type of service if the court gives him or her permission. To ask the court, the server must first try to serve the tenant in person and by substituted service, and write a declaration for the court explaining that he or she was not successful.
If the judge lets the landlord serve by posting and mailing, the server has to post a copy of the Summons and Complaint on the property where the tenant will see it and send another copy by certified mail to the tenant at the tenant’s last known address. Service is considered complete on the 10th day after the certified mailing of the papers to the tenant.
Every defendant named in the lawsuit must be served with the Summons and Complaint. Make sure a third person NOT involved in the case serves the Summons and Complaint on the defendant. You cannot serve the Summons and Complaint yourself, even if you served the notice.
If there are other people living in the property that you did not include in the Complaint, you have 2 choices:
- Do nothing: If you do nothing, the people who are not included in the Complaint do not have to leave when the court orders the named defendants to move out. So, if you win and they do not leave voluntarily, the sheriff will not evict them and you may have to bring another lawsuit to get your property back.
- At the time you have the named defendants served with the Summons and Complaint, have your server find out if there are any other occupants in the rental unit. If there are, have your server serve each of them with a blank Prejudgment Claim of Right of Possession (Form CP 10.5) as well as copies of the Summons and Complaint. The Prejudgment Claim of Right of Possession gives other occupants of the property the chance to file papers with the court within 10 days to tell the judge they have a right to live on the property. If they do not file anything, then the sheriff will evict them if you win.
- Note: If you are evicting tenants after acquiring the property in a foreclosure, this 10 day limit does NOT apply and the tenants can file the Prejudgment Claim at any time before the judgment is final, or challenge the eviction after the judgment.
As you can see, if there are occupants in the property that you did not name in your eviction complaint, they may be able to fight the eviction successfully, even if you initially get your eviction judgment. This is especially true in foreclosed properties. So, talk to lawyer about what choice is best in your case!
Alert! If there are other people living in the property that are not included in the Complaint, and you decide to serve them with a Prejudgment Claim of Right of Possession, you MUST have a registered process server or sheriff serve them. You cannot use a friend in this case.
FILL OUT AND FILE THE PROOF OF SERVICE
The server must first complete and sign a Proof of Service of Summons (Form POS-010) and give it to you (the landlord). Make a copy for yourself. Makse sure the server filled out the Proof of Service correctly. A mistake on this form can delay the case or you may have to start all over.
Then take the completed, signed Proof of Service and the copy to the court clerk for filing. The clerk will keep the original, and will return the copy to you stamped “Filed.” Keep the copy for your records.