Ready to evict a problem tenant? Use the definitive step-by-step guide to evictions in California
Sooner or later, every landlord is faced with handling an eviction. Don't get caught spending thousands on attorney's fees when The California Landlord's Law Book: Evictions will guide you through the process every step of the way -- without breaking the bank.
Read up on the different legal grounds for eviction in plain English, plus get all the forms and step-by-step instructions needed to perform a successful and legal eviction. Learn how to:
- prepare and serve 3-, 30-, 60- or 90-day notices
- file an unlawful detainer complaint in court
- win by default if the tenant doesn't respond
- handle a contested case
- represent yourself in court
- deal with eviction-delaying tactics
- collect the unpaid rent after you win
Still the only step-by-step guide through the California eviction process, this edition reflects current law and provides the latest information, forms, and instructions for a quick and legal eviction.
Nolo has dozens of products created just for California residents. Check out Nolo's list of California products.
“An up-to-date book such as this is as necessary as a rent receipt book or a good repair person.” - San Francisco Chronicle
“Recommended by the state Department of Consumer Affairs.” - Sacramento Bee
- Forms for ending the tenancy
- Three-Day Notice to Pay Rent or Quit
- 30-Day Notice of Termination of Tenancy (Tenancy Less Than One Year)
- 60-Day Notice of Termination of Tenancy (Tenancy of One Year or Longer)
- 90-Day Notice of Termination of Tenancy (Subsidized Tenancies)
- Three-Day Notice to Perform Covenant or Quit
- Three-Day Notice to Quit (Improper Subletting, Nuisance, Waste, or Illegal Use)
- Forms for filing an eviction lawsuit
- Summons—Unlawful Detainer—Eviction
- Complaint—Unlawful Detainer
- Civil Case Cover Sheet
- Civil Case Cover Sheet Addendum and Statement of Location
- Proof of Service of Summons
- Application and Order to Serve Summons by Posting for Unlawful Detainer
- Prejudgment Claim to Right to Possession
- Blank Pleading Paper
- Forms for default judgments
- Request for Entry of Default
- Writ of Execution
- Application for Issuance of Writ of Execution, Possession or Sale (Los Angeles only)
- Declaration in Support of Default Judgment for Rent, Damages, and Costs (3-, 30-, 60-, or 90-Day Notice)
- Declaration in Support of Default Judgment for Damages and Costs (Violation of Lease)
- Declaration for Default Judgment by Court
- Forms for contested evictions
- Judgment—Unlawful Detainer
- Stipulation for Entry of Judgment
- Request/Counter-Request to Set Case for Trial—Unlawful Detainer
- Notice of Motion for Summary Judgment; Plaintiff’s Declaration; Points and Authorities
- Proof of Personal Service
- Order Granting Motion for Summary Judgment
- Judgment Following Granting of Motion for Summary Judgment
- Judgment—Unlawful Detainer Attachment
- Forms for collecting your money judgment
- Application and Order for Appearance and Examination
- Questionnaire for Judgment-Debtor Examination
- Application for Earnings Withholding Order (Wage Garnishment)
- Acknowledgment of Satisfaction of Judgment
- Proof of Service by Mail
David Brown practices law in the Monterey, California area, where he has represented both landlords and tenants in hundreds of court cases -- most of which he felt could have been avoided if both sides were more fully informed about landlord/tenant law. Brown, a graduate of Stanford University (chemistry) and the University of Santa Clara Law School, also teaches law at the Monterey College of Law.
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TABLE OF CONTENTS
The California Landlord's Evictions Companion 1
Who This Book Is For 2
Who Should Not Use This Book 2
Evictions in California: An Overview 5
The Landlord's Role in Evictions 6
Eviction Forms and Procedures 6
Proceed With Caution When Evicting a Tenant 8
How This Book Will Help You Do an Eviction 8
Evictions in Certain Rent Control and Other Cities 10
A Reason for Which You Must Evict: Drug Dealing 12
Evicting Roommates 12
Evicting a Resident Manager 13
Attorneys and Eviction Services 14
Eviction for Nonpayment of Rent 17
Overview of the Process 18
Preparing the Three-Day Notice to Pay Rent or Quit 20
Serving the Three-Day Notice on the Tenant 28
After the Three-Day Notice Is Served 32
When to File Your Lawsuit 33
Eviction by 30-Day or 60-Day Notice 35
Overview of the Process 37
When a Tenancy May Be Terminated With a 30-Day or 60-Day Notice 37
Impermissible Reasons to Evict With a 30- or 60-Day Notice 39
30-Day, 60-Day, and 90-Day Notices 40
Rent Control and Just Cause Eviction Ordinances 41
Should You Use a Three-Day, 30-Day, or 60-Day Notice? 47
Preparing the 30-Day or 60-Day Notice 48
Serving the Notice 48
When to File Your Lawsuit 52
Eviction for Lease Violations, Property Damage, or Nuisance 55
When to Use a Three-Day Notice Eviction 56
Checklist for Uncontested Nonrent Three-Day Notice Eviction 56
Evicting a Tenant Who Is Dealing Drugs 58
The Two Types of Three-Day Notices 58
Type of Notice Used in Rent Control Communities 58
Using the Three-Day Notice to Perform Covenant or Quit 59
Using the Unconditional Three-Day Notice to Quit 62
Serving the Three-Day Notice (Either Type) 66
Accepting Rent After the Notice Is Served 67
When to File Your Lawsuit 67
Eviction Without a Three-Day or Other Termination Notice 69
Lease Expiration 70
Termination by the Tenant 72
Checklist for Uncontested "No-Notice" Eviction 74
Filing and Serving Your Unlawful Detainer Complaint 75
How to Use This Chapter 76
When to File Your Unlawful Detainer Complaint 76
Where to File Suit 77
Preparing the Summons 77
Preparing the Complaint 82
Preparing the Civil Case Cover Sheet 98
Getting the Complaint and Summons Ready to File 100
Filing Your Complaint and Getting Summonses Issued 100
Serving the Papers on the Defendant(s): Service of Process 101
What Next? 114
Taking a Default Judgment 115
When Can You Take a Default? 116
The Two-Step Default Judgment Process 117
Getting a Default Judgment for Possession 118
Having the Marshal or Sheriff Evict 129
Getting a Money Judgment for Rent and Costs 133
Contested Cases 153
What Is Involved in a Contested Eviction Case 155
Should You Hire an Attorney? 155
How to Settle a Case 156
Preparing and Filing a Stipulation for Entry of Judgment 158
The Tenant's Written Response to an Unlawful Detainer Complaint 164
The Tenant's Answer to Your Complaint 167
Responding to the Answer 172
Other Pretrial Complications 197
Preparing for Trial 199
The Trial 207
The Writ of Execution and Having the Sheriff or Marshal Evict 211
Tenant's Possible "Relief From Forfeiture" 212
Collecting Your Money Judgment 215
Collection Strategy 217
Using the Tenant's Security Deposit 218
Finding the Tenant 219
Locating the Tenant's Assets 221
Garnishing Wages and Bank Accounts 225
Seizing Other Property 232
If the Debtor Files a Claim of Exemption 234
Once the Judgment Is Paid Off 236
When a Tenant Files for Bankruptcy 237
When a Tenant Can File for Bankruptcy 238
The Automatic Stay 238
Eviction of Tenants in Rental Property
Purchased at Foreclosure 251
Rent Control Chart 253
Reading Your Rent Control Ordinance 254
Finding Municipal Codes and Rent Control Ordinances Online 255
Rent Control Rules by California City 257
How to Use the Interactive Forms on the Nolo Website 289
Editing RTFs 290
Using Judicial Council and Government Forms 290
Special Requirements for Motions and Declarations 291
List of Forms Available on the Nolo Website 295
Evictions in California: An Overview
The Landlord’s Role in Evictions.................................................................. 6
Eviction Forms and Procedures................................................................... 6
Types of Forms in This Book......................................................................... 6
How to Fill in the Forms in This Book.......................................................... 7
The Importance of Attention to Detail.......................................................... 7
Proceed With Caution When Evicting a Tenant......................................... 8
How This Book Will Help You Do an Eviction............................................ 8
Legal Grounds for Eviction............................................................................ 8
Court Procedures for Evictions.................................................................... 9
If Your Tenant Doesn’t Contest the Eviction............................................... 9
If Your Tenant Contests the Eviction........................................................... 9
Bankruptcy and Foreclosure Issues.......................................................... 9
Collecting a Money Judgment.................................................................... 9
Evictions in Certain Rent Control and Other Cities.............................. 10
Cities With Rent Control............................................................................ 11
Just Cause Protection Without Rent Control......................................... 11
A Reason for Which You Must Evict: Drug Dealing................................ 12
Evicting Roommates.................................................................................... 12
Evicting a Resident Manager...................................................................... 13
Separate Management and Rental Agreements.................................... 14
Single Management/Rental Agreement.................................................... 14
Attorneys and Eviction Services.................................................................. 14
Hiring an Attorney to Handle or Assist With an Eviction......................... 15
Using an Eviction Service............................................................................ 15
This book covers all the rules, procedures, and forms you need to evict a tenant in California. Before getting into the details, it’s important to have a clear road map of the eviction process. That’s the purpose of this chapter.
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 in California 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.
Eviction Forms and Procedures
There are specific forms and procedures for each step of the eviction process, including:
termination forms for ending the tenancy, such as a Three-Day Notice to Pay Rent or Quit, and notices to cure another type of breach, or vacate (the exact form and procedures vary depending on the reason for the termination)
unlawful detainer forms for filing an eviction lawsuit, such as a Summons and a Complaint (the documents that actually initiate your lawsuit)
forms for taking a default judgment in an uncontested eviction, such as a Request for Entry of Default and Writ of Possession (paperwork sent to the court for possession of the property and for money the tenant owes you)
forms for contested evictions, such as a Request/Counter-Request to Set Case for Trial and a Stipulation for Entry of Judgment, both used when the tenant has filed a response to your unlawful detainer Complaint
forms for obtaining your money judgment, such as a Declaration in Support of Default Judgment, and the judgment, and
forms for collecting your money judgment, such as the Writ of Execution and related forms, such as Application for Earnings Withholding Order (wage garnishment).
This book includes over 30 forms. We clearly explain what form you need for different situations, and how and when to prepare and serve each form. At the start of each chapter, we’ve included a checklist of the different steps, timelines, and forms you need to prepare for a particular type of eviction, whether for nonpayment of rent or violation of a lease term. And we provide details on how rent control rules enter the mix.
It may seem overwhelming, but keep in mind, that most landlords will primarily be concerned with evicting a tenant for nonpayment of rent, and that in many situations, the tenant will leave without contesting the eviction. In these cases, you may only need a few of the forms included here. But we’ve got you covered when it comes to the all too common case of a tenant contesting a termination or filing for bankruptcy.
Types of Forms in This Book
This book includes both official California court forms, published by the Judicial Council, and Nolo forms prepared by this book’s attorney author. We also include a few official forms that are specific to evictions in Los Angeles. All the 30 plus forms in this book are legally accurate as of the date this book went to press (late 2012).
We’ve included tearout copies of all forms in Appendix C of this book, and downloadable versions are available on the Nolo website (see below for the link to this book’s companion page on the Nolo site). In addition to being available on the Nolo website, current Judicial Council forms are available at www.courts.ca.gov/forms.htm.
To find a specific Judicial Council form on the Council website, just search for the name of the form and the form number. The Judicial Council forms will have the words Judicial Council of California in the bottom left and will have a form number in the upper right; for example, the Judgment—Unlawful Detainer is Judicial Council form UC-110.
How to Fill in the Forms in This Book
We provide detailed instructions on how to fill in each form in the relevant chapters. Also, Appendix B explains how to download the forms from the Nolo website. In addition, if you want to download a form from the Judicial Council site, there’s useful information there on filling out one of the official court forms (see www.courts.ca.gov/selfhelp-how-to-fill.htm).
Many of you will prefer to download the relevant forms and fill in online and then print. If you’re old fashioned and prefer to use a typewriter, you may type in the required information on any of the forms in this book. Courts are also required to accept forms that are filled in by hand.
The Importance of Attention to Detail
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 of an eviction. Our advice: Especially if your action is contested, be meticulous in your preparation.
Paying the Tenant to Leave May Be Cheaper Than Doing an Eviction
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 $300 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-month-long 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 contest them. 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 do the following:
Avoid all unnecessary one-on-one personal contact with the tenant during the eviction process unless it occurs in a structured setting.
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.
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.
How This Book Will Help You Do an Eviction
Here’s an overview of how this book is organized and what you need to know each step of the way. The whole eviction process typically takes from one to two months.
Legal Grounds for Eviction
Chapters 2 through 5 explain the legal grounds for eviction under the following circumstances:
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).
Court Procedures for Evictions
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 Eviction
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 Your Tenant Contests the Eviction
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.
Bankruptcy and Foreclosure Issues
Chapter 10 discusses your option when a tenant files for bankruptcy, and Chapter 11 covers eviction of tenants in rental property you purchased at a foreclosure sale.
Collecting a Money Judgment
Chapter 9, on collecting your money judgment, will be your last stop after you win the lawsuit.
If you live in a city with a rent control ordinance, you will be referred to Appendix A from time to time for more detailed information on your locality’s ordinance.
Here are two examples of common pathways through this book:
Example 1: 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 A in this book and 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.
Eviction for Nonpayment Chart Here
Example 2: 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.
Eviction With 30-Day or 60-Day Notice (Tenant Contests) Chart Here
Abbreviations Used in This Book
We use these standard abbreviations throughout this book for important statutes and court cases covering evictions. If you want to go beyond this book and read the statutes themselves, see the website maintained by the Legislative Council at www.leginfo.ca.gov. See the Laws and Legal Research section on the Nolo site, www.nolo.com/legal-research, for advice on finding a law, statute, code section, or case. You may find it useful to go to the reference desk at your public library for help; many have good law collections. If your county maintains a law library that’s open to the public (often in a courthouse, state-funded law school, or a state capital building), you can get help there, too, from law librarians.
Bus. & Prof. Business & Professions
Civ. Code Civil
C.C.P. Civil Procedure
H. & S. Health and Safety
C.F.R. Code of Federal Regulations
U.S.C. United States Code
Cal. App. California Court of Appeal
Cal. California Supreme Court
F. Supp. Federal District Court
F.2d or F.3d Federal Court of Appeals
U.S. United States Supreme Court
Evictions in Certain Rent Control and Other 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
Local rent control laws 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 A 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.
In most cases, you can edit the forms in our book to comply with your rent control ordinance requirement for extra information, but if you have any questions, consult with an attorney experienced in rent control in your community.
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 16 additional sets that are tailor-made for use in the 16 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 A, which tells you what to look for and where to learn more. With most cities, you can read the ordinance online.
California Cities With Rent Control
Some form of rent regulation now exists in 16 California cities:
Campbell (mediation only)*
East Palo Alto
Fremont (mediation only)*
* These rent control cities do not have just cause eviction provisions.
Just Cause Protection Without Rent Control
Three cities without rent control—San Diego, Glendale, and Maywood—also restrict evictions, though San Diego’s ordinance applies only to tenancies lasting two years or 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.
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.
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 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 1: Marlena Mastertenant rents a two-bedroom house from Oscar Owner for $1,600 a month. Marlena rents one of the bedrooms (plus half the common areas such as kitchen, bathroom, and hallways) to Susie Subtenant for $700 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 4, in Chapter 6), Marlena should list herself as “lessee/sublessor.”
Example 2: Tom Tenant and Tami Tenant (brother and sister) jointly rent a two-bedroom apartment from Louise Landlord. They moved in at the same time and both of them signed the lease. They are both Louise’s tenants. Because neither Tom nor Tami are each other’s subtenant, they cannot use this book.
If you have any questions about legal relationships with roommates, see The California Landlord’s Law Book: Rights & Responsibilities, by David Brown, Ralph Warner, and Janet Portman (Nolo).
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 Lodger
A lodger, or roomer, is someone who rents a room in a house that you own and live in. The rules for evicting a lodger are covered by California Civil Code § 1946.5 and Penal Code §§ 602.3 and 837, and apply only if you rent to one lodger. In addition, you must have overall control of the dwelling unit and have retained a right of access to areas occupied by the lodger.
If you have two or more lodgers, you must use the unlawful detainer procedures described in this book. The following material applies only if you rent to one lodger.
If your lodger is a month-to-month tenant and you want to terminate the tenancy, you can serve the lodger with a 30-day notice, as explained in Chapter 3. You may also use a shortcut (not available to landlords serving nonlodger tenants) and send the notice by certified or registered mail, restricted delivery, with a return receipt requested.
A lodger who doesn’t leave at the end of the notice period is guilty of an infraction. Technically, this entitles you to do a citizen’s arrest, which means that you can eject the lodger using reasonable, but not deadly, force. However, we strongly advise against this tactic, and instead suggest calling local law enforcement to handle the situation. Have a copy of your dated termination notice available. Be aware that many local police do not know the procedures
for evicting lodgers or may not want to get involved, fearing potential liability for improperly evicting a tenant. The police may insist that you go through the normal unlawful detainer lawsuit process—which will result in a court order authorizing the police or sheriff to evict the lodger. If the lodger has stayed for a year or more and the police won’t evict on your 30-day notice, you will have to start all over with a 60-day notice according to a different law, Civ. Code § 1946.1. Check with your chief of police to find out how this issue is handled.
If you need to evict your lodger “for cause”—that is, for failing to pay the rent or violation of the rental agreement—you can serve him with a three-day notice, but if he doesn’t leave you will have to go through an unlawful detainer lawsuit as explained in this book. You cannot hand your copy of the three-day notice to the local police and ask them to remove the lodger. For this reason, you may want to use the less complicated route of the 30-day notice, in hopes that, if the lodger refuses to budge, local law enforcement will honor your termination notice.
Finally, if your lodger has a lease, you cannot evict unless he has failed to pay the rent, violated a term of the lease, or engaged in illegal activity. In these situations you will need to use a 30-day or 60-day notice. If the lodger fails to vacate, you must file an unlawful detainer lawsuit in order to get him out.
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 you have a management agreement that 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. See “Attorneys and Eviction Services,” below, for more on the subject.
Separate Management and Rental Agreements
To evict a tenant-manager with whom you signed separate management and month-to-month 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 for Uncontested ‘No-Notice’ Eviction” 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. Because 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.
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 or you purchased the rental property at foreclosure. (See Chapter 10 and Chapter 11.)
Hiring an Attorney to Handle or Assist With an Eviction
Finding a good, reasonably priced lawyer expert in residential evictions is not always an easy task. If you just pick a name out of the phone book, you may find someone who charges too much or who’s not qualified to deal with your particular problem. The best way to find a suitable attorney is through some trusted person who has had a satisfactory experience with one. Your best referral sources are other landlords in your area. If you talk to a few landlords, or check with your local landlords’ association, you’ll likely come away with several leads on good lawyers experienced in landlord-tenant law and evictions.
Find a lawyer at www.nolo.com/lawyers. To help consumers choose the right attorney, Nolo’s Lawyer Directory allows each advertiser to provide a detailed profile, with information about each lawyer’s expertise (such as landlord-tenant law), education, and fees. Lawyers also indicate whether they are willing to review documents or coach clients who are doing their own legal work. You can also submit information about your legal issue to several local attorneys who handle landlord-tenant issues, and then pick the lawyer you’d like to work with. For advice on hiring and working with lawyers, including what to ask a prospective attorney, see www.nolo.com/lawyers/tips.html.
How you pay your lawyer depends on the type of legal services you need and the amount of legal work you have. The lawyer may charge an hourly rate to represent you in a contested eviction case, or a flat fee to represent you in court for a routine eviction for nonpayment of rent. In any case, always ask for a written fee agreement, explaining all fees (including work by legal assistants and court filing fees) and how costs will be billed and paid. A written agreement will help prevent disputes about legal fees and clarify the relationship you expect to have with the attorney and the services the lawyer will provide. Some agreements state how each of you can end the agreement and explain how you expect to work together, such as any decisions the lawyer can make alone and which require your approval.
Using an Eviction Service
Filing and following through with an eviction lawsuit involves filling out a number of legal forms. And once the forms are filed with the court, they must be served on the tenant. You can do it yourself, using all the forms and instructions in this book, or you can hire a lawyer. There is also a third route: getting help with the paperwork, filing, and service from an eviction service run by nonlawyers, known as “legal typing services” or “independent paralegals.”
For a flat fee that is usually much lower than what lawyers charge, nonlawyer eviction services take the basic information from you, provide the appropriate eviction forms, and fill them out according to your instructions. This normally involves typing your eviction papers so they’ll be accepted by the court, arranging for filing, and then serving the papers on the tenant.
Eviction services cannot give legal advice about the requirements of your specific case and can’t represent you in court—only you or your lawyers can present your case in court. Most eviction services handle only routine cases, and they are not helpful in more complex eviction cases or 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 addition, all court papers filed by an “unlawful detainer assistant” must indicate that person’s name, address, and county registration number.
To find an eviction service, check with a local landlords’ association or look online or in the yellow pages under “eviction services” or “paralegals.” Be sure the eviction service is reputable and experienced, as well as reasonably priced. If the service isn’t registered, don’t use it. Ask for references and check them.