Introduction

Sometimes even the most sincere and professional attempts at conscientious landlording fail, and you have to consider evicting a tenant. This is a do-it-yourself eviction manual for California landlords. It shows you, step by step, how to file and conduct an uncontested eviction lawsuit against a residential tenant. It does not cover how to evict a hotel guest, a tenant in a mobile home park, or a commercial tenant. Neither does it show a new owner, who has just purchased property at a foreclosure sale, how to evict a former owner (or his tenant).

The Landlord's Role in Evictions

Strictly speaking, the word "evict" refers to the process of a sheriff or marshal ordering a tenant to get out or be forcibly removed. It is illegal for you to try to physically evict a tenant yourself. The sheriff or marshal will only evict a tenant pursuant to a court order known as an "unlawful detainer judgment." To get such a judgment, you must bring an eviction lawsuit, called an "unlawful detainer action," against the tenant.

The linchpin of an unlawful detainer suit is proper termination of the tenancy; you can't get a judgment without it. This usually means giving your tenant adequate written notice, in a specified way. The law sets out very detailed requirements for landlords who want to end a tenancy. If you don't meet them exactly, you will lose your suit even if your tenant has bounced checks, including your rent check, from here to Mandalay.

This legal strictness is not accidental; it reflects the law's bias in favor of tenants. The law used to be heavily weighted on the landowner's side, but attitudes have changed, and today the law puts more value on a tenant's right to shelter than a landlord's right to property. As one court put it, "Our courts were never intended to serve as rubber stamps for landlords seeking to evict their tenants, but rather to see that justice be done before a man is evicted from his home." ( Maldanado v. Superior Court (1984) 162 Cal. App. 3d 1259, 1268-69.)

Because an eviction judgment means the tenant won't have a roof over his head (and his children's heads), judges are very demanding of the landlord. In addition, many California cities go beyond state law, which allows the termination of periodic tenancies at the will of the landlord, and require the landlord to show a "just cause" for eviction. In these cities, nonpayment of rent is still a straightforward ground for eviction, but there are few others.

Why do we emphasize the negatives of evicting a tenant? Because we want you to understand at the outset that even if you properly bring and conduct an unlawful detainer action, you are not assured of winning and having the tenant evicted if the tenant decides to file a defense. In other words, despite the merits of your position, you may face a judge who will hold you to every technicality and bend over backwards to sustain the tenant's position. A tenant can raise many substantive, as well as procedural, objections to an unlawful detainer suit. Essentially, any breach by you of any duty imposed on landlords by state or local law can be used by your tenant as a defense to your action. Simply put, unless you thoroughly know your legal rights and duties as a landlord before you go to court, and unless you dot every "i" and cross every "t," you may end up on the losing side. Our advice: Especially if your action is contested, be meticulous in your preparation.

Before you proceed with an unlawful detainer lawsuit, consider that even paying the tenant a few hundred dollars to leave right away may be cheaper in the long run. For example, paying a tenant $500 to leave right away (with payment made only as the tenant leaves and hands you the keys) may be cheaper than spending $100 to file suit and going without rent for three to eight weeks while the tenant contests the lawsuit and stays. The alternative of a several-monthlong eviction lawsuit -- during which you can't accept rent that you may be unable to collect even after winning a judgment -- may, in the long run, be more expensive and frustrating than paying the tenant to leave and starting over with a better tenant quickly.

Note of Sanity. Between 80% and 90% of all unlawful detainer actions are won by landlords because the tenant fails to show up. So the odds favor relatively smooth sailing in your unlawful detainer action.

Proceed With Caution When Evicting a Tenant

The moment relations between you and one of your tenants begin to sour, you will be wise to remember a cardinal truth. Any activity by you that might be construed by your tenant as illegal, threatening, humiliating, abusive, or invasive of his privacy can potentially give rise to a lawsuit against you for big bucks. So, although the unlawful detainer procedure can be tedious, it's important to understand that it is the only game in town.

Shortcuts such as threats, intimidation, utility shutoffs, or attempts to physically remove a tenant are illegal and dangerous. If you resort to them, you may well find yourself on the wrong end of a lawsuit for such personal injuries as trespass, assault, battery, slander and libel, intentional infliction of emotional distress, and wrongful eviction. A San Francisco landlord was ordered to pay 23 tenants $1.48 million in 1988, after a jury found he had cut off tenants' water, invaded their privacy, and threatened to physically throw them out. (The verdict was reduced on appeal, to half a million dollars.) ( Balmoral Hotel Tenants Association v. Lee (1990) 226 Cal. App. 3d 686, 276 Cal. rptr. 640.)

To avoid such liability, we recommend that you avoid all unnecessary one-on-one personal contact with the tenant during the eviction process unless it occurs in a structured setting (for example, during mediation, at a neighborhood dispute resolution center, or in the presence of a neutral third party). Also keep your written communications to the point and as neutral as you can, even if you are boiling inside. Remember, any manifestations of anger on your part can come back to legally haunt you somewhere down the line. Finally, treat the tenant like she has a right to remain on the premises, even though it is your position that she doesn't. Until the day the sheriff or marshal shows up with a writ of possession, the tenant's home is legally her castle, and you may come to regret any actions on your part that don't recognize that fact.

When Not to Use This Book

Most of you fit within the most common eviction situation: You (or the owner, if you are a manager) own residential rental property which you operate as a business. You need to evict a tenant who has not paid the rent, has violated another important rental term or condition, or has held over past the expiration of his or her lease or rental agreement. this is the book for you, to use on your own or in conjunction with an attorney.

There are some situations, however, that this book doesn't address. Do not use this book, or its forms, if any of the following scenarios describe you.

You have bought the property at a foreclosure sale and need to evict the former owner, who has not moved out. If you now want to get rid of the former owner-occupant, you must use a special unlawful detainer complaint, unlike the forms contained in this book. You'll need to see a lawyer.

You have bought the property at a foreclosure sale and need to evict the tenant of the former owner. If the occupant is a tenant of the former owner, different procedures apply depending on whether the tenant's lease predated the mortgage or deed of trust foreclosed upon, and whether you accepted rent from the tenant after foreclosure. Here are the rules:

• If the tenant's lease or rental agreement began after the deed of trust was recorded (which will be true in most cases), the foreclosure sale has the effect of wiping out the lease or rental agreement. If you have not accepted rent from the former owner's tenant, there is a way to get the tenant out quickly -- but you won't be able to use the Complaint forms in this book. You'll need to see a lawyer.
• If the tenant's lease began before the deed of trust was recorded, or if you have accepted rent from a tenant whose lease or rental agreement predates the deed of trust, you must honor his lease or rental agreement just as the former owner did. In short, you are now the tenant's landlord, and until the lease runs out (or you terminate a month-to-month tenancy with the proper amount of notice), or until the tenant otherwise violates the rental conditions, you are stuck with this tenant. If any of these events come to pass, however, you may use this book.

You have purchased the property and want to evict the former owner's tenant. When you purchase property at a normal sale, you "take" it subject to existing leases or rental agreements. This means that no matter how much you would like to move in yourself or install different tenants, you can't do so until the leases run out, you terminate a month-to-month with the proper amount of notice, or the tenant violates an important rental term or condition. When any of these conditions are met, however, you may go ahead and use this book and its forms.

You own commercial property and want to evict a tenant for nonpayment of rent or other lease violations. Commercial landlords should not use this book. Many commercial leases require tenants to pay for common-area maintenance, prorated property taxes, and utility charges, in addition to a set monthly sum. Because the exact rent amount is often not clear, a special termination notice (not supplied in this book) must be used. Also, many commercial leases provide for special types of notice periods and ways to serve notices, which are different from the ones specified in this book. Finally, since commercial leases often run for five or ten years and can be quite valuable to a tenant, a commercial tenant is much more likely than a residential tenant to contest an eviction -- and judges are less likely to order an eviction for minor lease violations. In short, with all these possible complications, we suggest seeing an attorney to handle an eviction of a commercial tenant.

A Reason for Which You Must Evict: Drug Dealing

In cases of drug dealing, it's not a question of whether or not it's permissible to evict a tenant -- it's imperative to do so. In fact, a landlord who fails to evict a tenant who deals illegal drugs on the property can face lawsuits from other tenants, neighbors, and local authorities. Many landlords have been held liable for tens of thousands of dollars in damages for failing to evict a drug-dealing tenant. A landlord can also face loss of the property.

When it's a month-to-month tenancy, terminate the tenancy with a 30-day notice (or 60-day notice if tenant has stayed a year or more.) See Chapter 3 as soon as you suspect illegal drug activity by the tenant or any members of the tenant's family. If the tenant has a fixed-term lease, you will have to follow the procedures in Chapter 4. Evictions for drug dealing may be a little more difficult in rent control cities with "just cause eviction" provisions in their rent control ordinances; even so, a landlord faced with a drug-dealing tenant should do everything he or she can to evict, and should begin gathering evidence against the drug dealer -- including getting tenants and neighbors to keep records of heavy traffic in and out of the suspected tenant's home at odd hours.

Evictions in Certain Cities

Local ordinances in many California cities address evictions -- specifying under what circumstances you may proceed, and how to proceed. Most of these cities also have rent control ordinances, but not all, as you'll see below.

Cities With Rent Control

If you think all local rent control laws do is control rents, you have a surprise coming. They also affect evictions in two important ways: first, many (but not all) rent control ordinances and regulations impose important restrictions or additional procedural requirements on evictions. For example, the ordinances of some cities require a landlord to have a "just cause" (good reason) to evict a tenant, sometimes even for rental units that are exempt from rent control. Local ordinances also commonly require tenancy termination notices and complaints to contain statements not required by state law.

Second, any violation of any provision of a rent control law may provide a tenant with a defense to your eviction lawsuit. Even failure to register your rental units with the local rent board, if that is required under the ordinance, may provide a tenant with a successful defense against an eviction suit. Appendix 1 in this book lists the requirements each rent control city imposes on eviction lawsuits -- such as any applicable registration requirements or extra information required in three-day or other termination notices or in the eviction complaint itself.

No two cities' rent control ordinances are alike. Within the space of one book, we can only write instructions and forms for use by the majority of California landlords -- those who do not have rent control. We cannot include 15 additional sets that are tailor-made for use in the 15 cities that have rent control and impose additional requirements when it comes to filling out forms. But your rent control ordinance may affect almost every step in your eviction proceeding. If you do not conform your notices and court filings to your ordinance's requirements, it's very likely that your case will be tossed out or lost, perhaps after you've spent considerable time and effort. We cannot say this strongly enough: Read your rent control ordinance before you begin an unlawful detainer proceeding and before you use any of the forms in this book. Begin by reading the overview in Appendix 1, which tells you what to look for and where to learn more (often, you can read the ordinance online).

San Diego and Glendale

Two cities without rent control -- San Diego and Glendale -- also restrict evictions, though San Diego's ordinance applies only to tenancies lasting two years of more. These cities' rules do not affect the procedure for evicting with a three-day notice based on nonpayment of rent or other breach, or commission of waste or nuisance. They do affect evictions based 30-day or 60-day terminations of month-to-month tenancies. See "Checklist for 30-or 60-Day Notice Eviction" in Chapter 3.

Evicting Roommates

This book was written with the small property owner in mind, such as an owner of a modest apartment complex or a single-family rental.

However, some of our readers have used this book to evict a roommate. If you are thinking about evicting a roommate, we suggest that you read The Landlord's Law Book: Rights & Responsibilities, where we discuss the legal relationship between roommates.

If you want to use this book to evict a roommate, you must be the original tenant (or the one who has signed a lease or rental agreement with the landlord), and the roommate you want to evict must be your landlord's "subtenant." A "subtenant" is usually someone who is renting part of your place from you and paying rent to you instead of your landlord. In this relationship, you are the "landlord" and your roommate is your "tenant."

You can't evict a roommate if you and your roommate are "cotenants." You are cotenants if you and your roommate both signed the lease or rental agreement.

EXAMPLE: Marlena Mastertenant rents a two-bedroom house from Oscar Owner for $900 a month. Marlena rents one of the bedrooms (plus half the common areas such as kitchen, bathroom, and hallways) to Susie subtenant for $400 a month. Marlena is the tenant and Susie is the subtenant. Marlena can use the procedures in this book to evict Susie if Susie doesn't pay her rent. In the unlawful detainer complaint (see "Preparing the Complaint," Item 3, in Chapter 6), Marlena should list herself as "lessee/sublessor."

EXAMPLE: Terry Tenant and Tillie Tenant (brother and sister) jointly rent a two-bedroom apartment from Lenny Landlord. They moved in at the same time and both of them signed the lease. They are both Lenny's tenants. Since neither Terry nor Tillie are each other's subtenant, they cannot use this book.

The legal relationship between roommates is often unclear. For example, if one tenant moved in first, is the second occupant a subtenant because she negotiated with and rented from the first tenant, or a cotenant because she claims to have a separate verbal understanding with the owner regarding rent? If in doubt, see a lawyer before using this book to evict a roommate you claim is your subtenant.

Evicting a Resident Manager

If you fire a resident manager, or if he quits, you will often want him to move out of your property, particularly if he occupies a special manager's unit or if the firing or quitting has generated (or resulted from) ill will. Eviction lawsuits against former managers can be extremely complicated. This is especially true if the management agreement requires good cause for termination of employment or a certain period of notice. Such lawsuits can also be complicated where a single combined management/rental agreement is used or if local rent control laws impose special requirements. While all rent control cities do allow eviction of fired managers, some cities impose restrictions on it.

This section outlines some of the basic issues involved in evicting a resident manager. We do not, and cannot, provide you complete advice on how to evict a resident manager. In many cases, you will need an experienced attorney who specializes in landlord-tenant law to evict a former manager, particularly if the ex-manager questions whether the firing was legally effective or proper.

Separate Management and Rental Agreements

To evict a tenant-manager with whom you signed separate management and rental agreements (which allows you to terminate the employment at any time), you will have to give a normal 30-day written termination notice, or a 60-day notice if the tenant-manager stayed for a year or more, subject in either case to any just cause eviction requirements in rent-control cities. (See Chapter 3.) If the tenant has a separate fixed-term lease, you cannot terminate the tenancy until the lease expires.

Single Management/Rental Agreement

What happens to the tenancy when you fire a manager (or he quits) depends on the kind of agreement you and the manager had.

If the Manager Occupied a Special Manager's Unit

If your manager occupies a specially constructed manager's unit (such as one with a reception area or built-in desk) which must be used by the manager, or if she receives an apartment rent-free as part or all of her compensation, your ability to evict the ex-manager depends on:

• the terms of the management/rental agreement, and
• local rent control provisions.

If the agreement says nothing about the tenancy continuing if the manager quits or is fired, termination of the employment also terminates the tenancy. You can insist that the ex-manager leave right away, without serving any three-day or other termination notice, and can file an eviction lawsuit the next day if the ex-manager refuses to leave. (See C.C.P. § 1161 (1) and Lombard v. Santa Monica YMCA (1985) 160 Cal. App. 3d 529.) (See the checklist in Chapter 5.)

The just cause eviction provisions of any applicable rent control law, however, may still require a separate notice or otherwise restrict your ability to evict a fired manager.

If the Manager Didn't Occupy a Manager's Unit

If the manager was simply compensated by a rent reduction, and there is no separate employment agreement, there may be confusion as to whether the rent can be "increased" after the manager is fired.

If an ex-manager refuses to pay the full rent, you will have to serve a Three-Day Notice to Pay Rent or Quit, demanding the unpaid rent. If she still won't pay, you'll have to follow up with an eviction lawsuit. (See Chapter 2.)

Attorneys and Eviction Services

While you can do most evictions yourself, there are a few circumstances when you may want to consult an attorney who specializes in landlord-tenant law:

• The property you own is too far from where you live. Since you must file an eviction lawsuit where the property is located, the time and travel involved in representing yourself may be great.
• Your tenant is already represented by a lawyer, even before you proceed with an eviction.
• Your property is subject to rent control and local ordinances governing evictions.
• The tenant you are evicting is an ex-manager whom you have fired. (See above.)
• Your tenant contests the eviction in court. (See Chapter 8 for more details on hiring an attorney in contested cases.)
• Your tenant files for bankruptcy. (See Chapter 10.)

If you simply want someone to handle the paperwork and eviction details, you can use an "eviction service." (Check the Yellow Pages under this heading.) Because eviction services cannot represent you in court, however, they are not helpful where the tenant contests the eviction in court.

Eviction services must be registered as "unlawful detainer assistants" with the county in which they operate, and must also be bonded or insured. (Bus. & Prof. Code §§ 6400-6415.) In additional, all court papers filed by an unlawful detainer assistant must indicate that person's name, address and country registration number.

How to Use This Book

This book is a companion volume to The California Landlord's Law Book: Rights & Responsibilities, which discusses the legal rules of renting residential real property, with an eye toward avoiding legal problems and fostering good tenant relations. Although you can use this book as a self-contained do-it-yourself eviction manual, we strongly recommend that you use it along with The California Landlord's Law Book: Rights & Responsibilities. It's not just that we want to sell more books -- The California Landlord's Law Book: Rights & Responsibilities provides crucial information on the substance of landlord-tenant law that you almost certainly will need to know to win a contested unlawful detainer lawsuit. For example it discusses leases, cotenants, subtenants, roommates, deposits, rent increases, rent control laws, privacy, discrimination, your duty to provide safe housing, and many more crucially important areas of landlord-tenant law. Even more important, The California Landlord's Law Book: Rights & Responsibilities provides a good overview of your duties as a landlord so that you can minimize the need to evict tenants as much as possible, or at least know in advance whether you're vulnerable to any of the commonly used tenant defenses.

Some material is necessarily repeated here and discussed in the eviction context. For example, information on three-day notices is important for both rent collection and for eviction. For the most part, however, this volume makes extensive references to The California Landlord's Law Book: Rights & Responsibilities for detailed discussions of substantive law instead of repeating them.

Now let's take a minute to get an overview of how this volume works. Chapters 2 through 5 explain the legal grounds for eviction. This entire lists looks like this:

• The tenant has failed to leave or pay the rent due within three days of having received from you a written Three-Day Notice to Pay Rent or Quit (Chapter 2).
• A month-to-month tenant has failed to leave within the time allowed after having received from you a written notice giving 30 days, or 60 days if the tenant rented for a year or more, or 90 days (certain government-subsidized tenancies.) (Chapter 3.)
• The tenant has failed to leave or comply with a provision of her lease or rental agreement within three days after having received your written three-day notice to correct the violation or quit (Chapter 4).
• The tenant has sublet the property contrary to the lease or rental agreement, has caused or allowed a nuisance or serious damage to the property, or has used the property for an illegal purpose, and has failed to leave within three days of having received from you an unconditional three-day notice to vacate (Chapter 4).
• A tenant whose fixed-term lease has expired and has not been renewed has failed to leave (Chapter 5).
• A month-to-month tenant has failed to leave within the stated time after having given you a written 30-day or 60-day notice terminating the tenancy (Chapter 5).

After the tenancy is terminated (in almost all cases, by a three-day or other notice), most of the procedures in unlawful detainer lawsuits are the same no matter which reason your suit is based on. Thus, after you read either Chapter 2, 3, 4, or 5, depending on the way you're terminating the tenancy, go next to the chapters that explain the court procedures. These begin with Chapter 6 on filing a complaint to begin your unlawful detainer lawsuit.

If your tenant doesn't contest the lawsuit within five days after being served with a copy of your complaint, you will go next to Chapter 7 on getting an eviction judgment by default.

If the tenant does contest your unlawful detainer suit, you will proceed directly to Chapter 8, which tells you how to handle contested actions and when the services of a lawyer are advisable. Chapter 10 discusses your options when a tenant files for bankruptcy.

Chapter 9, on collecting your money judgment, will be your last stop after you win the lawsuit.

The whole eviction process typically takes from one to two months.

If you live in a city with a rent control ordinance, you will be referred to Appendix 1 from time to time for more detailed information on your locality's ordinance.

Here are two examples of common pathways through this book:

EXAMPLE: A tenant in your Los Angeles apartment building, Roy, doesn't pay the rent when it's due on the first of the month. A few days pass, and you decide he's probably never going to pay it. You turn to Chapter 2 on nonpayment of rent. Following the instructions, you serve Roy with a three-day notice to pay rent or quit (after checking Appendix 1 in this book and a copy of the current Los Angeles rent control ordinance to see if there are any special requirements you should know about).

Roy neither pays the rent nor moves in three days. You then turn to Chapter 6, which tells you how to begin an unlawful detainer suit by filing a complaint with the court and serving a copy of the complaint and a summons on the tenant. Roy does not respond to your complaint in five days, and Chapter 6 steers you to Chapter 7 on how to get a default judgment. You are entitled to a default judgment when the other side does not do the things necessary to contest a case. After you successfully use Chapter 7 to take default judgments both for possession of the premises and the money Roy owes you, your final step is to turn to Chapter 9 for advice on how to collect the money.

EXAMPLE: You decide that you want to move a new tenant into the house you rent out in Sacramento. The current tenant, Maria, occupies the house under a month-to-month rental agreement. She pays her rent on time, and you've never had any serious problems with her, but you would rather have your friend Jim live there. You turn to Chapter 3 and follow the instructions to prepare and serve a notice terminating Maria's tenancy -- a 60-day notice because she's lived there more than a year. Maria doesn't leave after her 60 days are up, so you go to Chapter 6 for instructions on how to file your unlawful detainer suit. After you serve her with the summons and complaint, Maria files a written response with the court. You then go to Chapter 8 to read about contested lawsuits.