This is a summary of the steps involved in the eviction of a residential tenant. Each case is unique and there are facts and circumstances which may make parts of this summary inapplicable in a particular case. This summary is not intended as a self-help guide for landlords attempting to handle evictions without the assistance of an attorney, but is intended to explain the process to a landlord who has the active assistance of an attorney.
1. It Starts With Notice
When a landlord wants to evict a tenant under a month-to-month rental agreement, the tenant must ordinarily be given a written notice. The form of the notice should be prepared or reviewed by an attorney before it is served on the tenant. Additionally, there are rules about how the notice must be served on the tenant, and the landlord should either entrust services of the notice to the attorney, or check with the attorney regarding permissible methods of service. When landlords lose in court, it is usually because the landlord had given the wrong form of notice, or had not followed the rules for service of the notice on the tenant. There are different kinds of notice, depending on the circumstances.
A. 3-day notice.
If the tenant is not current with rent payments, a 3-day notice can be used. The three day notice must give the tenant a chance to bring the rent current within 3 days. If the rent is not brought current within the three days, then the landlord can file the Unlawful Detain action described in part 2 below.
B. 30 day or 60 day notice.
If the reason for termination is other than the failure to pay rent, a 30 or 60 day notice is required. A 30 day notice may be used if the tenant has been in possession of the premises less than one year, and in a few other situations. A 60 day notice must be used if the tenant has been in possession for more than a year, or in any situation involving a mobile home in a mobile home park. At the end of the notice period, if the tenant has not moved out, the landlord can file the Unlawful Detainer action described in part 2 below.
2. The Unlawful Detainer Action
When the tenant has failed to vacate after expiration of the period specified in the notice described in part 1, above, the landlord must file a legal action in the local court. This action is called an “Unlawful Detainer” action and is a special proceeding that is much quicker than an ordinary legal action.
A. Service of Lawsuit.
When the action is filed, the landlord’s lawyer arranges to have the legal papers personally delivered to the tenant, usually by a licensed process server. The tenant has 5 days after being served with the papers to file a written answer with the court. If the 5th day falls on a holiday or weekend, the tenant has until the end of the next business day to file the answer.
B. Default.
If the tenant fails to file an answer within 5 days, the court clerk will issue a “Writ of Possession,” which is described in subparagraph D, below.
C. Answer.
If the tenant files an answer with the court, the court sets a trial date, usually about 2 weeks from the date the answer is filed. The “trial” in most cases only takes 10 minutes and the landlord usually wins if the landlord has complied with all the notice and other technical requirements of an Unlawful Detainer action. At the end of the trial, assuming the landlord wins, the judge directs the clerk of the court to issue a Write of Possession.
D. Writ of Possession and Lockout.
The county sheriff serves the writ of possession on the tenant and posts a copy of it on the premises. The tenant has five days after the writ is posted to leave the premises. On the first business day after the expiration of the five days, the sheriff returns to the property in the presence of the landlord. If the tenant is present, the sheriff orders the tenant to leave and if the tenant does not do so voluntarily, the sheriff will use force as necessary. The sheriff instructs the tenant and posts a notice that if the tenant returns, he/she will be considered a trespasser and subject to arrest.
If the tenant is not present, the sheriff will enter the premises with the key provided by the landlord. If the landlord does not have a key, the landlord should arrange for a locksmith to be present. As above, the sheriff posts a notice on the premises advising the tenant that he or she will be considered a trespasser if found on the premises.
Many landlords have the locks changed by a locksmith at the time of the lockout.
3. Costs and Attorney’s Fees.
The Attorney’s fees vary depending on the conduct of the tenant. If the tenant does not file an answer, the fees will be less than if the tenant files and answer and a trial is required. The range of fees shown here apply only to ordinary residential tenancies and would not apply to commercial leases, or to situations where the tenant has potentially meritorious defense.
4. Property left Behind by Tenant.
Sometimes tenants leave some of the possessions at the premises. Special notice provisions must be complied with before the landlord can dispose of the tenant’s property. The landlord should consult an attorney.
5. Recovery of Money from the Tenant.
If the landlord has filed an unlawful detainer action, the court will make a monetary award of unpaid rent, attorney’s fees, and costs. If the tenant vacated before an unlawful detainer was filed, the landlord can file an action in small claims court and obtain a money judgement for unpaid rent and any damage to the premises. In either case, however, it is usually a waste of time and effort to attempt to collect money from an evicted tenant. That is why prudent landlords require an adequate security deposit at the beginning of a tenancy.
About the Koons & Riswold Auburn Law Office
Koons & Riswold maintains its main office in Auburn, California to provide clients with legal services to clients in Auburn, as well as the greater Placer County region. Our Auburn lawyers provide legal services well suited to the Auburn area, which include: Living Trust and Estate Planning services, Probate, Real Estate legal issues, and business law matters. All our lawyers have deep roots in the Auburn area, having strong familial, community, and professional ties to the region. Koons & Riswold has recently opened a satellite office in Rocklin, California for the purpose of providing Living Trust and Estate Planning services there.