San Diego Business Lawyer
|BUSINESS AND CORPORATE LAW ARTICLES|
San Diego business lawyer Sergei Tokmakov
In order to get a sheriff or marshal to evict your California tenant, you must first obtain an unlawful detainer judgment. To get this judgment, you must file an eviction lawsuit, called unlawful detainer action against your tenant. However, prior to filing an unlawful detainer action, you must follow very specific and detailed steps to give your tenant a written notice. Even though the vast majority of landlords ultimately prevail because the tenant fails to show up for the hearing, it is important to follow the formalities to avoid getting your case delayed on technicalities.
Three-Day Notice to Pay Rent or Quit
In cases where a tenant fails to pay rent, prior to filing your unlawful detainer action, you must give your tenant a three-day notice. The notice must include your tenant's name, a demand to pay within three days or move out, and a statement that you will commence a legal action. California Code of Civil Procedure Section 1161(2). You or any other adult over 18 years of age can serve the notice upon your tenant. If the tenant refuses to take the notice, you may just drop it at his or her feet. If the tenant does not open the door, you may slide the notice under the door or shout, "I'm putting the notice under the doormat!"
If, after three full days, your tenant neither pays nor moves out, you may commence the unlawful detainer action. You don't have to accept full or partial payment tendered after the expiration of the three-day notice, but if you do accept such payment, you lose your eviction rights until the tenant is late with the rent again and you serve another three-day notice.After the tenant has had three full days to pay rent (counting the day after service received as the first day), you may commence your unlawful detainer action for failure to pay rent.
In cases where a month-to-month tenant fails to move out after you've terminated the tenancy, you may use a 30-day notice if the month-to-month tenant has lived at the property for less than a year. If the tenant has lived at the property for more than a year, you must give a 60-day notice (even if the tenant pays bi-weekly or weekly). A 90-day notice is required for some government-subsidized tenancies. The requirements for service are essentially the same as for a three-day notice. The 30-, 60- and 90-day notices are most appropriate where you want to evict tenant for a small violation, insignificant nuisance/damage or without just cause (if your jurisdiction allows evictions without just cause). San Diego allows eviction without just cause, but only for tenants who have resided at the property for less than two years. San Diego Municipal Code Sec. 98.0730. Santa Monica, Los Angeles, Beverly Hills, West Hollywood, Glendale, Palm Springs and San Francisco do not permit evictions without just cause. That means that a landlord may evict only for reasons enumerated in the applicable ordinances. The usual reasons are nonpayment of rent, nuisance, refusal to give landlord reasonable access to property, unauthorized subtenants, etc. It's usually better to use a three-day notice in cases of nonpayment of rent.
After you've served the 30- or 60-day notice, you must wait 30 or 60 days before filing your unlawful detainer complaint. A judge will usually hear and resolve the case within twenty days of filing. California Code of Civil Procedure Section 1170.5(a). If the decision is in your favor, the judge will issue a writ of possession (California Code of Civil Procedure Sections 712.010 and 715.010.) which orders the sheriff to remove the tenant from property if the latter does not leave voluntarily within five days.
This note by San Diego business lawyer Sergei Tokmakov is for general educational purposes only. It does not constitute legal advice because your specific case may be different. Readers should seek qualified counsel for assistance. This article may be reprinted, provided that all credit information and this paragraph remain intact.
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