Evictions & Unlawful Detainers - Due to the recent city and statewide moratoriums, Tenants and Landlords are facing one of the most challenging times in the history of multifamily and residential/commercial real estate. Call me at (310) 497-7255 to discuss the current law and what your options are.
An unlawful detainer lawsuit is a “summary” court procedure. This means that the court action moves forward very quickly and that the time given the tenant to respond during the lawsuit is very short. For example, in most cases, the tenant has only five days to file a written response to the lawsuit after being served with a copy of the Summons and Complaint. Normally, a Judge will hear and decide the case within 20 days after the tenant files an answer, this is called a Trial.
The Eviction Process in California is administered by the Superior Court of the State of California, which assures the tenant of the right to a court hearing if the tenant believes that the landlord and the tenant follow the laws during the Unlawful Detainer proceeding. California State Eviction Laws mandate that landlord must use this court statutory process to evict the tenant; the landlord cannot use self-help measures to force the tenant to move. For example, the landlord cannot physically remove or lock out the tenant, cut off utilities such as water or electricity. The landlord cannot remove outside windows or doors, or seize (take) the tenant’s belongings in order to carry out what the law calls a “Self Help Eviciton”.
If the landlord uses unlawful methods to evict a tenant, the landlord may be subject to liability for the tenant’s damages, as well as penalties of up to $200 per day for the time that the landlord used the unlawful methods.
In an Unlawful Detainer Lawsuit, the court holds a trial at which the parties can present their evidence and explain their case. If the court finds that the tenant has a good defense, the court will not evict the tenant. If the court decides in favor of the tenant, the tenant will not have to move, and the landlord may be ordered to pay court costs (for example, the tenant’s filing fees). The landlord also may have to pay the tenant’s attorney’s fees, if the rental agreement contains an attorney’s fee clause and if an attorney represented the tenant.
The most common reason for eviction is not paying rent - including repeated late payment of rent or bounced rent checks.
There can be several reasons for eviction however, that go beyond not paying rent and other fees agreed to in their rental or lease agreement. These can include causing disturbances and nuisances for other tenants, degrading the living conditions of others by accumulating waste on the property, or criminal activity like selling drugs. This can be legally bound with the type of rental or lease agreement you have with the tenant, or if you are under rent control.
For example, if tenants are not complying with the terms of their rental agreement or lease, you can serve an Eviction Notice based upon non-compliance.
This is usually a 3 Day Notice to Perform or Quit based upon specific elements of their agreement they are not complying with.
For example, unknown occupants are living in a unit. When a tenant signs a lease, the names of all parties living in the property should be on the lease agreement. If you discover there are additional people living in the unit that have not been named on the lease agreement, you can file for an eviction if the legal tenants do not comply with removing the unauthorized occupants within a specified period of time.
Another example is a tenant hoarding and leaving trash and debris all over the property and they signed a lease declaring they would up-keep the premises. You can serve them a notice to perform pursuant to their lease, and if they do not comply, you have grounds to file an eviction against them.
Depending upon the length of their tenancy - if the tenant has been renting the property for over or under a year - and if they have been renting on a month to month basis, you can serve either a 30 or 60 Day Eviction Notice.
Where the owner acquires the property at auction or a trustees or foreclosure sale, they can ask the former owner of the property to quit within 3 Days - and tenants to quit the property within 90 Days.
People can also be evicted if they are still holding possession of a property after a lease agreement has expired. If the owner doesn’t want to renew the tenant’s lease - and providing the landlord has not accepted payment of rent after the expiration of the lease agreement - we can file an Unlawful Detainer based upon the tenant holding over after the lease agreement has expired.
If the court decides in favor of the landlord at the conclusion of the trial, the court will issue a writ of possession. The writ of possession orders the sheriff to remove the tenant from the rental unit, but gives the tenant five days from the date that the writ is served to leave voluntarily. If the tenant does not leave by the end of the fifth day, the writ of possession authorizes the sheriff to physically remove and lock the tenant out, and seize (take) the tenant’s belongings that have been left in the rental unit. The landlord is not entitled to possession of the rental unit until after the sheriff has removed the tenant and plt the landlord back in possession of the property.
The court also may award the landlord any unpaid rent if the eviction is based on the tenant’s failure to pay rent. The court also may award the landlord damages, court costs, and attorney’s fees (if the rental agreement or lease contains an attorney’s fee clause and if the landlord was represented by an attorney). If the court finds that the tenant acted maliciously in not giving up the rental unit, the court also may award the landlord up to $600 as a penalty. The judgment against the tenant will be reported on the tenant’s credit report for seven years.
I. Before Taking Action
STEP 1. Determine Whether Unlawful Detainer Action Is Appropriate
"Unlawful detainer" is an expedited statutory procedure under CCP §§1161-1179a that generally:
a. Permits landlord or its successor to regain possession of premises occupied by tenant or other occupant;
b. Permits new owner to obtain possession following foreclosure or execution sale; and
c. Applies to tenant or occupant whose right to possession has lawfully terminated.
NOTE: An unlawful detainer action is available when a real property purchase contract effectively operates as a lease. See, e.g., Taylor v Nu Digital Mktg., Inc. (2016) 245 CA4th 283 (contract required "purchaser" to make 60 probationary installment payments, possession was conditioned on payments, and payments were not credited toward purchase price). But an unlawful detainer is not appropriate to evict a defaulting buyer under a land sales contract; such a contract does not create a landlord-tenant relationship. Greene v Municipal Court (1975) 51 CA3d 446, 450.
Further Research: For discussion on nature and applicability of unlawful detainer remedy, see California Landlord-Tenant Practice §§9.2-9.12, 9.36 (2d ed Cal CEB), referred to throughout this Action Guide as Landlord-Tenant.
Plaintiff may recover:
a. Possession of premises;
b. Unpaid rent accrued for up to 1 year (but only if unlawful detainer action is based on 3-day notice to pay rent or quit under CCP §1161(2));
c. Daily holdover damages based on "reasonable rental value" of premises, from date unlawful detention begins;
d. Statutory damages of up to $600 (see CCP §1174(b));
e. Court costs;
f. Interest; and
g. Attorney fees, if provided for in the signed written contract or an applicable statute.
POSSIBLE ALTERNATIVE REMEDIES
Analyze whether less expensive, less time-consuming remedies, such as removing a trespasser (or squatter) or establishing abandonment, are available to landlord.
ALTERNATIVELY REMOVE TRESPASSER
This alternative remedy may be available if a trespasser occupies premises.
Example: Tenant in month-to-month tenancy dies and mother continues to make rental payments for 4 years while concealing her daughter's death from landlord. Tenancy is terminated by notice of tenant's death as of the 30th day following tenant's last rent payment. Mother's occupancy is a trespass, and she is not entitled to notice of termination. See Miller & Desatnik Mgmt. Co. v Bullock (1990) 221 CA3d Supp 13. Anticipate that occupant may argue that landlord's acceptance of rent over extended period with knowledge of tenant's death constitutes waiver of right to remove non-lessee occupant or that landlord is estopped from removing occupant. See Landlord-Tenant §§3.55, 3.64, 8.61.
NOTE: Under some local rent and eviction control laws, certain "trespassers" may be regarded as "tenants." See, e.g., Pick v Cohen (2000) 83 CA4th Supp 6 (upheld ordinance that prohibits eviction of additional occupant, such as surviving close relative or domestic partner of original tenant, if landlord had knowledge of additional occupant and if occupant lived in premises for more than 1 year before original tenant died). In its opinion, the court cautioned that the definitions contained in the local ordinance determined the parties' status and the applicability of the ordinance, but noted that cases arising from local ordinances are distinguishable from cases that are subject to general state law, which "occupies the field in the determination of what creates a landlord-tenant relationship." 83 CA4th Supp at 11. See Landlord-Tenant §§7.27-7.28, 7.42, 7.55A, 7.72.
WHAT TO DO
If occupant does not have a written or oral lease or rental agreement:
a. Establish that occupant is not tenant under applicable rent control law;
b. Ask occupant to leave;
c. Ascertain whether police will remove trespasser (see Pen C §602); and
d. If so, request that they remove trespasser from premises.
An action to eject a trespasser is an ordinary civil action that is not entitled to expedited trial setting (see Landlord-Tenant §§9.6-9.12; California Real Property Remedies and Damages, chaps 10-11 (2d ed Cal CEB)).
ALTERNATIVELY REMOVE SQUATTER
If police will not remove trespasser (even under theory of criminal trespass):
a. Serve occupant with appropriate termination notice followed by unlawful detainer action:
(1) Arguably, the squatter is tenant at sufferance and may be evicted in an unlawful detainer action without prior notice.
(2) In the alternative, first post and mail a letter to the squatters summarizing the facts, demanding immediate possession, and informing them an unlawful detainer will be filed without further notice.
(3) Or attempt to evict based on service of a 30 Day Notice to Terminate Tenancy at Will, under CC §789.
b. Whenever you file an unlawful detainer action and there are unknown occupants, file and serve a Prejudgment Claim of Right to Possession (see step 15, below) with the Summons (Summons-Unlawful Detainer-Eviction (Judicial Council Form SUM-130)) and Complaint (Complaint-Unlawful Detainer (Judicial Council Form UD-100)). See CCP §§415.46, 1174.25.
NOTE: Some cities and counties in California have ordinances that provide remedies to abate squatter camps, loosely defined as an open or enclosed area where individuals reside in tents, without plumbing or water supply, without permission of the owner of the property. For example, Oakdale's ordinance prohibits camping on private property without the owner's consent and declares that any violation is both a public nuisance and a misdemeanor; in addition to prosecution under Pen C §370, the city attorney may institute civil or administrative actions to abate the nuisance. Modesto has an ordinance allowing the city to order landowner to remove a squatter camp from his or her land, and upon noncompliance, the city may condemn the land as a public nuisance and remove the squatters. Plumas County also has an ordinance that prohibits squatters on public or private land.
ALTERNATIVELY ESTABLISH ABANDONMENT
This alternative remedy is available if tenant is not in possession and does not intend to retake possession.
NOTE: Landlord's use of an abandonment notice does not preclude use of a Notice to Pay Rent or Quit under CCP §§1161-1162. CC §1951.3(h).
WHAT TO DO
Advise landlord that he or she may retake possession after establishing tenant's abandonment. Landlord establishes tenant's abandonment in noncommercial tenancy by (CC §1951.3):
a. Serving a Notice of Belief of Abandonment of Real Property if (CC §1951.3(e); see Martin v Cassidy (1957) 149 CA2d 106, 110):
(1) Landlord reasonably believes that tenant abandoned property; and
(2) Rent has been delinquent for at least 14 consecutive days;
NOTE: Although not required by statute, it makes sense to also post a copy of the Notice of Belief of Abandonment in a conspicuous place on the premises.
b. Taking possession 18 days after mailing the Notice of Belief of Abandonment (or 15 days after personal service) if tenant does not comply with CC §1951.3(e); and
c. Adhering strictly to statutory procedures to avoid any charge of wrongful eviction.
If tenant has abandoned personal property in the premises after landlord takes possession using the above steps, landlord then should serve Notice of Right to Reclaim Abandoned Personal Property. See step 39, below.
NOTE: The procedure for establishing abandonment of commercial property is similar, but the notice of abandonment is governed by CC §1951.35. See Landlord-Tenant §§8.9-8.13.
WHEN TENANT DEFENDS ABANDONMENT CLAIM
Property will not be deemed abandoned in noncommercial tenancy if (CC §1951.3(f)):
a. Tenant has paid or pays the rent due; or
b. Tenant gives landlord written notice of intent not to abandon and provides an address where tenant may be served by certified mail in any unlawful detainer action.
If tenant does not respond to landlord's notice and properly defend abandonment claim, landlord may legally enter and take possession without filing an unlawful detainer action. See Landlord-Tenant §§8.14-8.16. Even if tenant successfully opposes landlord's attempts to establish abandonment, landlord can still proceed with unlawful detainer action.
NOTE: When landlord simply obtains a harassment restraining order directing tenant to stay away from premises, that order is not effectively a remedy for possession, such as abandonment or lawful eviction. Even if the order could be considered a judgment for possession, the court must issue a writ of possession and notice must be given to allow tenant to vacate voluntarily. People v Thompson (1996) 43 CA4th 1265.
Sample Form: For sample Notice of Belief of Abandonment for Non-Commercial Real Property, see App A.
Further Research: See Landlord-Tenant, chap 8; California Eviction Defense Manual §§1.12, 3.4, 11.18, 19.1B (2d ed Cal CEB), referred to throughout this Action Guide as Eviction Defense Man.
DISCOURAGE UNLAWFUL "SELF-HELP"
DISCOURAGE LANDLORD'S USE OF SELF-HELP
Caution landlord against using impermissible forms of "self-help" (see generally Eviction Defense Man, chap 3), e.g.:
a. Forcible entry (CCP §1159);
b. Forcible detainer (CCP §1160);
c. Harassment intended to influence tenant to vacate dwelling (CC §1940.2);
d. Disclosure or threats to disclose information about immigration or citizenship status of tenant, occupant, or certain other persons to influence tenant to vacate a dwelling (CC §1940.2);
e. Causing tenant or occupant to quit involuntarily because of immigration or citizenship status of tenant, occupant, or certain other persons unless landlord is complying with any legal obligation under federal rental assistance program to qualified tenant (CCP §1161.4(a)), and if landlord violates this law, tenant may raise violation as affirmative defense to eviction (CCP §1161.4(b));
f. Interruption or termination of utilities (CC §789.3(a));
g. Lockout (CC §789.3(b)(1)); or
h. Refusal to accept rental payments from third party on behalf of tenant, subject to certain limitations and conditions (CC §1947.3(a)(3) (effective January 1, 2019)); this right is unwaivable (CC §1947.3(e) (effective January 1, 2019)). See Landlord-Tenant §§1.31, 1.48, 4.30, 8.46 (2d ed Cal CEB).
REVIEW LOCAL EVICTION CONTROLS
ADVISE LANDLORD ABOUT LOCAL ORDINANCES
Effective January 1, 2020, many California residential tenancies are regulated by either local or statewide eviction controls, and most local ordinances of this type are not preempted by the new law, the Tenant Protection Act of 2019 (Stats 2019, ch 597 (AB 1482)), codified at CC §1946.2 and explained in Addendum.
Review with landlord applicable city and county eviction control laws, just-cause eviction ordinances, rent control or rent increase limits, source of income protections, and potential for wrongful eviction or discrimination suits (see "Local Rent and Eviction Control Ordinances" in steps 2, 25; Landlord-Tenant, chaps 2, 7; Eviction Defense Man, chap 17), e.g.:
a. Good faith standards apply in many eviction-controlled areas; ordinances are amended and challenged frequently. See, e.g., Action Apartment Ass'n v City of Santa Monica (2007) 41 C4th 1232 (landlord who serves eviction notice is only protected by litigation privilege if unlawful detainer action is contemplated in good faith); Baba v Board of Supervisors of City & County of San Francisco (2004) 124 CA4th 504; Bawa v Terhune (2019) 33 CA5th Supp 1 (after tenant was one penny short on rent payment, eviction improper because it would violate city's good cause eviction law; tenant may assert landlord's unreasonable, bad faith conduct as defense).
b. Some ordinances permit specific evictions only if they are temporary. In Chacon v Litke (2010) 181 CA4th 1234, e.g., tenants sued their landlord for failing to allow them to move back into premises after he evicted them to make repairs. Landlord argued that the litigation privilege barred tenants' lawsuit, but the court disagreed. 181 CA4th at 1256.
c. Some ordinances do not permit eviction after sale or foreclosure of residential property subject to the ordinance (see Gross v Superior Court (1985) 171 CA3d 265).
d. Some ordinances regulate buy-out agreements between landlords and tenants. See, e.g., San Francisco Adm C §37.9E (landlord must provide tenant with rent board-approved disclosure form before negotiations, file declaration of service, and file copy of agreement with rent board).
NOTE: The courts will generally uphold buy-out agreements for rent-controlled units that are negotiated in good faith and do not violate local rent ordinances. See Geraghty v Shalizi (2017) 8 CA5th 593.
e. Increasingly, local ordinances provide just-cause eviction limitations on non-rent-controlled units. See, e.g., San Diego Mun C §§98.0701-98.0760; Richmond Fair Rent, Just Cause for Eviction & Homeowner Protection Ordinance §§11.100.010-11.100.130.
f. Many ordinances require landlords to pay relocation assistance to displaced tenants on Ellis Act withdrawal. See, e.g., Oakland Mun C §§8.22.020, 8.22.040, 8.22.120, 8.22.410-8.22.450; San Francisco Adm C §§37.9A(e)(3), 37.9C.
NOTE: Relocation-assistance ordinances are frequently challenged. For example, after San Francisco dramatically increased relocation payments to tenants on eviction for specified reasons, its ordinance was declared unconstitutional by a federal district court, which issued an order enjoining its enforcement, in Levin v City & County of San Francisco (ND Cal 2014) 71 F Supp 3d 1072 (Levin I). But on appeal to the 9th Circuit, the city obtained a stay of the appeal to amend the ordinance and then sought review of the amended ordinance (capping relocation assistance at $50,000), but the court of appeal found the issue moot. See Levin v City & County of San Francisco (9th Cir 2017) 680 Fed Appx 610. On remand, the district court denied the city's motion to vacate the judgment, finding the city caused the mootness and should not benefit from its action. (See Levin v City & County of San Francisco (ND Cal 2017) 257 F Supp 3d 1092 (Levin II)). In a separate state-court challenge, Coyne v City & County of San Francisco (2017) 9 CA5th 1215, the court ruled that both the original and the amended ordinance did not survive the "prohibitive price" test under the Ellis Act and were thus preempted. For further discussion, see Eviction Defense Man §17.32.
BE ALERT FOR AMENDMENTS TO ORDINANCES
Ordinances statewide continue to change quickly, and practitioners should be cautiously aware of the expanding level of limitations on rent increases and just-cause eviction, relocation assistance, source of income rules, and other local requirements. In addition to the Levin cases, above, for example:
REVIEW APPLICABLE AFFORDABLE HOUSING PREREQUISITES
Before preparing notice to evict, verify whether there are any low-income housing regulations or lease provisions that contain special notice or other prerequisites to eviction. State and federal regulations apply to various low- or moderate income housing, such as public housing, subsidized housing, tax credit, or HOME program, or tenant with a Section 8 voucher. Occasionally, more than one program will govern, such as a tax credit rental with tenant who also has a Section 8 voucher. Review the lease and all addenda, as well as the regulatory agreement, if any, as well as any regulations, for substantial and procedural tenants' rights, and eviction protections, such as a mandatory grievance hearing, additional requirements for service of notice (e.g., personal service, certified mail, extra days for mailing, or envelope with return address), and other technicalities.
A public housing authority (PHA) must provide meaningful information about any change to rent payment standards. In one case, a poorly written flyer failed to provide fair notice to voucher holders that an impending change would result in a rent increase for nearly half the recipients, thereby violating both voucher program regulations and procedural due process. Nozzi v Housing Auth. (9th Cir 2015) 806 F3d 1178. See Eviction Defense Man §§18.3B, 18.20A, 18.22.
INVESTIGATE APPLICABILITY OF VAWA'S NOTICE OF OCCUPANCY RIGHTS
Under the Violence Against Women Act (VAWA) (34 USC §§12471-12491), PHAs, listed HUD housing programs, and other covered housing providers must include a "Notice of Occupancy Rights under the Violence Against Women Act" and a certification form with "any notice" of eviction or termination of assistance. See 34 USC §12491; 24 CFR §§5.2003, 5.2005(a)(1)-(2). See 81 Fed Reg 80724 (Nov. 16, 2016). VAWA expired in February 2019 and may be reauthorized in 2019 or 2020 under pending HR 1585, 116th Cong, 1st Sess (2019). Counsel would be prudent to encourage landlords to honor its substance until it can be determined affirmatively that it will not be reauthorized.
NOTE: Under 24 CFR §5.2005(a), HUD requires covered landlords and housing providers to give tenants a VAWA notice of occupancy rights and certification form, first at move-in, and again with any eviction notice or notice of termination of assistance. Although the introduction to (and summary of) this 2016 HUD rule states that housing providers need not provide those forms "with subsequent notices sent for the same infraction" (see 81 Fed Reg 80724, 80771 (Nov. 16, 2016)), this language is not in the actual rule; thus the conservative practitioner will advise landlords with subsidized housing to provide VAWA documents to their tenants both at time of move-in and with any and all eviction notices, or notices of termination of tenancy.
SPECIALLY HANDLE EVICTIONS AFTER FORECLOSURE
CALIFORNIA STATE LAW PROTECTS TENANTS AFTER FORECLOSURE
During the Great Recession, several states enacted laws to offer protections to residential tenants after foreclosure. In California, CCP §1161b lists the requirements implemented to protect tenants.
The rules are highly specific and technical. To determine if an owner after foreclosure may serve notice, and what kind of notice must be used, the new owner should:
a. First, attempt to determine who is in possession of the premises, and if they are tenants, and if so, the terms of their tenancy; and
b. If possible, obtain a copy of the rental agreement, if any.
PURCHASER MUST RECORD DEED BEFORE SERVING NOTICE TO QUIT
The California Supreme Court held that purchaser at foreclosure sale must record the deed to perfect title, before serving a Notice to Quit on a commercial tenant under CCP §1161a(b). Dr. Leevil, LLC v Westlake Health Care Ctr. (2018) 6 C5th 474, 479. Civil Code §2924h(c) instructs that the deed of sale is perfected retroactively so long as the deed is recorded within 15 days after the sale. But title perfection comes only after the deed is recorded and is not retroactive. The San Diego Superior Court Appellate Division made a similar ruling in a residential eviction after foreclosure. See U.S. Financial, L.P. v McLitus (2016) 6 CA5th Supp 1, 4 (deed must have been recorded before purchaser serves notice to quit).
These rulings reflect a departure from prior cases in which courts found a purchaser after a foreclosure sale could serve a notice to quit on tenants before recording the deed. The theory in those cases was that title is perfected retroactively if the deed is recorded within 15 days after the sale under CC §2924h.
FIXED-TERM RESIDENTIAL LEASES SURVIVE FORECLOSURE IN CALIFORNIA
If residential tenant entered into a bona fide fixed-term lease before the foreclosure sale's transfer of title, the lease survives the foreclosure and tenant has the right to occupy the premises until the end of the lease term (except that tenancy may be terminated on 90 days' written notice to quit on four limited conditions). CCP §1161b(b). Compare to tenant with month-to-month or periodic agreement, who must vacate after service of 90-day written notice to quit. CCP §1161b(a).
Additional protections may apply to tenants after foreclosure under subsidized leases, or local rent stabilization or just cause ordinances.
MILITARY SERVICEMEMBER TENANTS
STAY OF EVICTION AVAILABLE
If tenant is a member of the military, he or she may be protected from a residential eviction during his or her period of service, and under recent amendments to both state and federal law, a stay of the eviction action may be obtained on conditions imposed by the court. The period of noneviction has been extended by state law to 120 days after the military member's release from active service. See Mil & V C §§406-407; Servicemembers Civil Relief Act (50 USC §§3901-4043), cited in Eviction Defense Man §§7.25, 12.28, 20.13, 25.65.
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