8th Dec 2012
I wrote this step by step for Avvo a while back, called How to Evict a Tenant in California. It’s not just the basic procedures, but also gives a sense of the negotiation and settlement process that is key to working out a good deal.
Can you work it out?
You have a right to prompt payment of the rent. If the rent is late or not forthcoming, you have a right to possession. But perhaps you can work out an arrangement with your tenant to allow them to keep the place and for you to get your rent in time. If the tenant has lost a job, perhaps you want to offer a temporary reduction in rent (in writing of course); of perhaps you want to take partial payment with the balance deferred. If it’s something else, a stern letter that they may be facing eviction if the behavior doesn’t cease may be sufficient. Better yet: a lawyer letter. Perhaps the behavior was unintentional. The best solutions are mutually beneficial ones, not ones imposed by courts.
Hire a Lawyer.
Seriously. It may seem self-serving, but in my work with my local Legal Aid, I can’t tell you how many cases we were able to beat back because of unrepresented landlords screwing it up. So, so much trouble could be avoided by having proper counsel and someone knowledgeable to handle the paperwork. Enough said.
The first step in any eviction is to serve a three-day notice in the case of unpaid rent. There are precise requirements as to the content of the notice, but at the most basic level it must be clear as to the amount due and to whom and where it must be paid. The tenant has three days after service of the notice to pay the rent. Some things to keep in mind. * You must accept the rent during this three-day period. * You can ONLY ask for rent. Not utilities, not late fees. Rent. * The tenant must be personally served (or someone in the home must be). Only if you cannot personally serve (that means you really, really try to serve at home or work) can you “nail and mail.”
OK, you’ve served the tenant and they didn’t pay their rent within three days. Now you file your complaint with the court. Get the paperwork and fill out the forms, either from the Judicial Council website, your local county website or by going to the Civil Clerk and asking for the forms. Now – you are forewarned. The two places these things go wrong is the notice and the complaint. The complaint must absolutely be technically accurate. It must plead the correct date the notice expired. It must state the correct date the notice was served. It must state the correct amount of rent due and it must be the same amount on the notice. You get the idea. Did I mention – this would be a good time to hire a lawyer? At any rate, the clerk will assign a hearing date, generally within 20 days. In Sonoma County, they’re assigned in 10-14 days. In bigger locales, the time may run over 20 days.
Serve the Complaint & Summons and File Proof of Service
The complaint must be served properly on the tenant(s). Properly means by a third party over 18 served in person. But there are a few details * Personal service – is absolutely the best way to go. That means the server puts the summons in the tenant’s hand. * Substituted service – is also OK. The server can personally served the summons on any responsible person at the dwelling. A teenager or adult should be sufficient, as long as they seem “responsible.” * Nail and mail – OK for the notice but definitely not for the summons. Actually there may be times when this can be used but you need a court approval to do it. Don’t even think about it until you’ve tried every which way to serve personally: at home, at work, multiple times, different times of day, etc. After you’ve served, file a proof of service with the court.
(Possibly) Take a Default
The defendant has only five days to respond. If they don’t, you might have it easy. Go to the clerk and file a Request for Default. Then show up to court on the appointed day. You’ll have to present enough evidence to “prove up” the default. Then it will be granted.
Reply to Demurrers and Motions
If the tenant finds a problem with the notice, complaint or service, she can file a range of papers objecting to the propriety of your action. You’ll have to respond to these in writing. At this stage, you really, really need a lawyer on your side. If you lose the motion, you’ll certainly be granted “leave to amend.” A second shot. If you lose a second time, the case may be dismissed and you’ll have to start again.
Settle or Trial
If the tenant answers, you can either settle the case before trial or go to trial. In any case, the judge will make you work with a mediator and try to reach a settlement. This could be giving the tenant some extra time to vacate, or accepting a payment plan. Often a “stipulation for entry of judgment” is used, where the tenant agrees to vacate by a certain date; if they don’t you can get an immediate judgment.
Writ of Possession
With a judgment in hand, the next step is to file a writ for possession. An eviction notice will be posted on the door and the sheriff will be out in five days time to evict. If things get to this stage, the tenant will be out of your property very quickly.