In California, a landlord can evict a tenant for failing to pay rent or for violating the lease or rental agreement. This article examines the basic eviction process in California, along with some of the most common defenses available to tenants. Additional rules may apply in California cities with rent control.
The only way a landlord can legally evict a tenant in California is by filing an eviction lawsuit with the court and receiving a court order allowing the eviction to occur. Before filing the eviction lawsuit, the landlord must first give the tenant notice that the tenant did something wrong and that an eviction may occur. The landlord must follow specific rules as to how and when the tenant is given notice.
As soon as rent is late, a landlord can give a tenant a three-day notice to pay rent or quit. The notice must state that the tenant has three days to pay rent or move out of the rental unit. If the tenant does not pay rent or move within the three-day period, the landlord can file an eviction lawsuit with the court (see Cal. Code of Civ. Proc. § 1161(2)).
A landlord can also evict a tenant for violating the lease or rental agreement. As soon as the landlord is aware of a lease violation, such as having a pet when none are allowed, then the landlord can give the tenant a three-day notice to perform or quit. This notice gives the tenant three days to come into compliance with the lease or rental agreement or move out of the rental unit. If the tenant does not correct the lease violation within the three days, then the landlord can file an eviction lawsuit with the court (see Cal. Code of Civ. Proc. § 1161(3)).
In some circumstances, such as tenant drug dealing, the landlord can give the tenant an unconditional three-day notice to quit which does not give the tenant the alternative of stopping his or her misbehavior.
Eviction lawsuits, also called unlawful detainer suits, are filed in the superior court of the county in which the rental property is located. To begin the lawsuit, the landlord must file a complaint and summons (official government forms) with the court. The complaint is where the landlord states the facts that justify the eviction and asks the court to order the tenant out and to enter a judgment against the tenant for unpaid rent and other costs. The summons is a notice from the court telling the tenant that he or she must file a written response to the court within a set amount of time or lose the lawsuit,
The court will set a date for a trial before a judge, and then the tenant will receive a copy of the filed complaint and summons, along with the date and time of the trial. If the tenant wishes to challenge the eviction, the tenant will have five days from the day the tenant received the summons to file an answer or other written response with the court. Then the tenant must attend the trial before the judge. If the tenant does not attend, the judge will likely rule in the landlord’s favor. At the trial, the judge will listen to both the tenant and the landlord and come to a final decision regarding the eviction.
The tenant may find that challenging the eviction is not always the best option. The tenant might have to pay the landlord’s court and attorney’s fees if unsuccessful in court. The tenant could also receive a negative credit rating and could be turned down for future housing. The best option for the tenant might be to try to talk to the landlord and negotiate a deal outside the court system. Many communities have free or low-cost mediation services that handle landlord-tenant disputes; local resources are available through the website mediate.com and the American Arbitration Association. The mediation faqs on the Nolo site provide more information on the subject.
A tenant facing eviction for failing to pay rent or violating the lease or rental agreement may have a defense that justifies fighting the eviction.
A landlord can only evict a tenant by going to court. It is illegal for a landlord to attempt to force a tenant to move out of a rental property through any other way, such as shutting off the utilities to the rental unit or changing the locks on the doors or windows. This type of action is often referred to as a “self-help” eviction. If a landlord attempts a “self-help” eviction, the tenant can sue the landlord for damages (see Cal. Civ. Code § 789.3). For more information on the topic, see Illegal Eviction Procedures in California.
When attempting to evict a tenant in California, a landlord must carefully follow all the rules and regulations set forth in the California Code. If the landlord does not do so, the eviction may be invalid. For example, a landlord is required to give a non-rent-paying tenant a three-day notice to pay rent or quit before filing the eviction lawsuit. If the landlord does not give the tenant the three-day notice but goes straight to court, the tenant can defend against the eviction by claiming lack of notice. The judge would likely dismiss the eviction case, and the landlord would have to start over in the process, beginning with a three-day notice to the tenant. After the three days had passed, if the tenant still had not paid rent, then the landlord could file a new eviction lawsuit, and the eviction would proceed as normal.
Keep in mind that this type of defense does not completely stop a justified eviction; it merely delays it. As soon as the landlord fixes the improper procedure, the eviction will continue as normal.
A landlord is required to give a tenant a three-day notice to pay rent or quit before filing an eviction lawsuit. If the tenant pays rent during the three-day period, the landlord must not proceed with the eviction (see Cal. Code of Civ. Proc. § 1161(2)). The tenant should ask for a time-stamped receipt if paying rent because of a three-day notice. This way, if the landlord continues with the eviction anyway, the tenant can use the receipt as proof that rent was paid during the three days.
In California, a landlord is required to maintain a rental unit according to a set of minimum standards (specified in Cal. Civ. Code § § 1941, 1941.1, and 1941.3)—for example, to provide waterproofing and weather protection on all roofs, walls, windows, and doors. If a landlord does not maintain a rental unit according to these standards, state law spells out when and how tenants may withhold rent (see Cal. Civ. Code § 1942 and Green v. Superior Court, 10 Cal.3d 616 (1974)). If a tenant complies with the law in withholding rent, and the landlord chooses to evict the tenant for nonpayment of rent, the tenant can use the landlord’s failure to maintain the rental unit as an affirmative defense to the eviction (see Cal. Code of Civ. Proc. § 1174.2). For more information on this topic, see California Tenant Rights to Withhold Rent or “Repair and Deduct.”
A landlord is required to give the tenant three days to fix a lease violation before filing the eviction lawsuit. With some exceptions, if the tenant fixes the lease violation within the three-day notice period, the landlord must not proceed with the eviction (see Cal. Code of Civ. Proc. § 1161(3)). If the landlord proceeds with the eviction anyway, the tenant can use proof that the violation was corrected within the appropriate time frame as a defense to the eviction.
The federal Fair Housing Act makes it illegal for a landlord to discriminate against a tenant based on race, religion, gender, national origin, familial status (including children under the age of 18 and pregnant women), and disability. In addition, California has enacted the Fair Employment and Housing Act, which also protects against discrimination based on gender identity, gender expression, sexual orientation, marital status, medical condition, and age. If a landlord tries to evict a tenant based on any of these characteristics, the tenant can use the discrimination as a defense to the eviction.
Legal aid organizations, such as LawHelpCA.org, can provide free or low-cost legal assistance to those who qualify based on income. The State of California also offers information online related to landlord-tenant issues. Tenants who live in federally assisted housing should also check out the tenant resource page at HUD.gov.
Eviction cases are filed in the superior court of the county in which the rental unit is located. To find your superior court, visit the online directory maintained by the California Court System. The California courts also provide information onevictions and the court process at their online self-help center.
For more detailed information about tenants’ rights in California, along with current official legal forms, check outCalifornia Tenants’ Rights, by Janet Portman and David Brown. Landlords should see The California Landlord’s Law Book: Evictions, by David Brown.
If you have more specific legal questions about your eviction case or the landlord has already retained a lawyer, you should probably also contact a lawyer. A lawyer can handle the whole case or give you advice on how to proceed. A lawyer can also let you know how likely you are to win your case. You may especially want to hire an attorney if you are confident of your case and your lease or rental agreement entitles you to attorney fees if you win in court.
For advice on finding a good lawyer, see How to Find an Excellent Lawyer.
Also check out Nolo’s Lawyer Directory for California lawyers who specialize in landlord-tenant law.