Before the landlord can file a wrongful retention lawsuit, the landlord must terminate the lease. If the tenant has a month-to-month lease, known as a periodic lease, and has occupied the premises for less than one year, then the landlord must give 30 days notice to terminate it. This notice does not have to be delivered at the beginning of the month. If the tenant has occupied the premises for a year or more, then the landlord must give 60 days notice to terminate the lease. If the tenant violates the terms of the lease, such as paying the rent, then the landlord can notify the tenant with a 3-day notice to correct the problem or move out.
The three-day notice is appropriate when the tenant is violating the lease, causing great damage to the property (waste), or creating a nuisance. A nuisance is an action by the tenant that interferes with the neighbors’ right to enjoy their property. An example would be a tenant who routinely plays loud music. The tenant who is causing damage or creating a nuisance receives a three-day notice to comply with the agreement or eviction. This notice basically says to correct the behavior in 3 days or the lease will be terminated. So if the tenant has a pet that is in violation of the rental agreement, this notice gives the tenant an opportunity to get rid of the pet and comply with the lease. There are circumstances where the landlord does not need to give the tenant the opportunity to correct the problem, such as a tenant who uses the property for illegal purposes or a tenant who has subletted the entire premises. In that case, you can indicate in the notice that you are demanding the loss of the lease.
When the tenant fails to pay the rent, the tenant is given a Three-Day Notice to Pay or Evict. The California Code of Civil Procedure is very specific as to what is required in this notice and how it is delivered. If done incorrectly, then the landlord could end up in box one of the eviction process. Worse still, it could render the claim defective and the landlord could end up paying court costs to the tenant. The notice must contain: the name of the tenant and the names of all adult occupants, regardless of whether they signed the original lease; The property address must be included; A demand to pay the established rent or to move; A statement that you will take legal action or declare the loss of the lease if the tenant fails to pay the rent due or moves out; Information about the name, telephone number and address where to pay the rent; the hours you will be there to accept the rent; and finally, a signature of the landlord. The notice may list a financial institution with an account number as the place to pay, but only if it is within five miles of the facility.
It is important to note that only the rent owed can be requested. If the landlord demands one more penny, then the notice is faulty. That means if the lease addresses things like late fees and utilities, those amounts would be inappropriate to demand in a three-day Notice of Payment or Eviction. If rent is due on the first of the month, the three-day Notice of Payment or Eviction may require this full amount and is not based on the date the notice was delivered. You can state in the notice that if they don’t comply, you will sue the tenant for rent, costs, and attorneys’ fees, depending on the lease or rental agreement.
Landlords should also know that a New York court found that a three-day Notice signed by someone other than the landlord triggered the Fair Debt Collection Practices Act. The net effect of this is that the claim is no longer a summary proceeding and the debtor has 30 days to respond. This app has yet to be found in California, but it certainly could be.
The Notice can be delivered any day after the rental expiration date. If the landlord habitually accepts the rent a few days late, this could pose a problem if the notice is delivered during this time. The tenant could claim that the landlord waived that part of the agreement and the tenant relied on this to their detriment. To avoid this “estoppel defense”, it is best to wait beyond any traditional “grace” period. As noted in the previous section, it is best to state in the rental agreement that any late rental acceptance does not constitute an expiration date waiver.
The notice can be served by anyone, including the owner. The best method is for a person over the age of 18 to serve the notice to each tenant. If the tenant refuses to accept the notice, it is acceptable to drop it at their feet. If they close the door before someone can deliver the notice, it is also acceptable to slide it under the door and say that you are “leaving the notice.” If you attempt to serve the notice but the tenant never appears to be home, substitute delivery is allowed. First try to notify the tenant at home and at work, it takes more than one attempt, and then the notice can be left with an adult at home or at work and a copy is sent to the tenant at home by mail from first class. Finally, if no one is home or the work address is unknown, then the notice can be served by posting a copy on the front door and mailing a copy by first class mail.
A copy of the three-day notice will need to be attached to the wrongful retention claim and the method of service must be indicated or a copy of a “proof of service” must be attached. Your course of action will now be determined by how the tenant responds to the Three Day Notice to Pay or Evict. If they don’t pay and don’t move, the landlord must file a lawsuit. The earliest a wrongful retention complaint can be filed is three more days after the day of service. For example, if the notice is delivered on a Monday, that day is not counted. The tenant then has 3 full days to pay or resign, or at the end of Thursday. This means that Friday would be the earliest the complaint could be filed. Do not accept rent after 3 days unless you want to continue with the rental. You will not be able to evict the tenant after you have accepted the rent.
As a strategy, it is generally prudent to give a three-day notice. There are times when it would be better to give 30 to 60 days advance notice. If a landlord is evicting a tenant for violating a lease term, waste, or nuisance, it is important to understand that the burden of proof is on the landlord. If the tenant is not late in paying the rent and the lease term has expired, then the recurring tenancy can be terminated with a 30- or 60-day notice, as appropriate. Generally, the landlord does not need a reason to terminate the lease with a 30- or 60-day notice, but in San Diego and some other cities there is what is known as a “Just Cause” eviction law. 30- and 60-day notices can be delivered any day of the month. It is important to count 30 to 60 days after the service to determine the end date. It is best to deliver this notice immediately after receiving the rent.
As a footnote, this is a good place to address security deposits. This applies to the 30 and 60 day move notice. Before a tenant moves in, you must notify them of their right to a unit inspection. Then you can give them a detailed list of problems and they will have a chance to fix the problem. If the tenant moves out and the landlord is in possession of the premises, then the landlord must provide a report to the tenant within 21 days of vacating, along with any refund due. California allows the landlord to deduct any unpaid rent, cleaning and repair costs beyond normal wear and tear. The landlord must attach the receipts to the accounting, and if they performed the work themselves, they must indicate the time spent and the hourly rate charged. The hourly rate must be reasonable. If the tenant does not provide a forwarding address, the statement must be mailed to the address of the rental unit.
After the tenant does not respond to the appropriate eviction notice (3-day notice, 30-day notice, or 60-day notice), the landlord can file a wrongful detainer lawsuit. As mentioned above, the claim cannot be filed one day before and the calculation of the expiration of the notice period is essential.
Once the lawsuit is filed, the summons, the lawsuit, and all exhibits are personally served on the tenant. If “personal service” is not possible for a valid reason, the law provides alternative methods of service. The landlord cannot serve these documents, and if there are unknown adult occupants, then the landlord must use a bailiff, bailiff, or process server to serve the summons and complaint, along with a Pretrial Claim of the right of possession of those occupants. .
The tenant will have five days from the date of service to file an answer with the court, unless they have not been personally served, in which case the tenant has an additional ten days to respond. If a pre-trial right of possession claim was used, unidentified occupants will have ten days from the date of service to join the lawsuit or face eviction.
If the tenant does not file an answer within the allowed time, the landlord can request a default judgment. This is considered an uncontested case, and as long as the documents presented by the landlord are in order and prove the case, the court will enter a judgment in favor of the landlord. If the Pre-Trial Claim on Right of Possession was used, the landlord must wait ten days to obtain a judgment against the unidentified occupants. If the case is not contested, the forms that must be prepared are the Judgment and a Writ of Possession. Tenant removal will not occur until the Sheriff has the Writ of Possession. That is what gives the bailiff the legal authority to evict. If the tenant files a response to the complaint, then the case is contested. The process that follows a contested case requires requesting a trial date, turning in more papers, and preparing for trial. The tenant can also ask the court to dismiss the lawsuit or to withdraw parts of the lawsuit if deficiencies are found in the summons and lawsuit. Also, if the summons and complaint are not properly served, the tenant can dismiss the case.
The process can move very quickly, as far as legal cases are concerned, but if there are errors or problems, the time required will increase substantially. Definitely don’t try “self-help” to evict a tenant outside of the legal process. You could quickly find yourself violating section 789.3 of the California Civil Code, and you don’t want that. Many homeowners attempt to navigate the process without outside help or use a property management firm, but using the legal system to regain possession of their property can be very complex and is made easier with the use of an attorney.