Landlord & Tenant Law

UNLAWFUL DETAINER/EVICTION LAWSUITS

The laws and procedures concerning eviction actions, also known as unlawful detainer, are technical and are strictly enforced by the courts. The laws and procedures pertaining to residential tenancies and commercial tenancies are different. For example, the acceptance of a partial rent payment after a notice to quit in the case of a residential tenancy may constitute a waiver of the notice, where such an acceptance of a partial rent payment might not be a waiver in a commercial tenancy. California Civil Code of Procedure (CCP) §1161.1

In the case of a residential tenancy, a “3-Day Notice to Pay Rent of Quit” is required to be given by the landlord to the tenant in the case of failure to pay rent, before an eviction action may be commenced in court. However, in a commercial tenancy, the parties are free to contract for a different manner of notice. If the rent is not paid, and if the tenant does not surrender possession of the premises within 3 days, then the landlord may commence a lawsuit for unlawful detainer. The clerk of the court issues a summons, which the landlord arranges to service upon the tenant. The tenant has five days to file an answer to the complaint, or his default may be entered.

Unlawful detainer is a summary proceeding for the prompt determination by the court as to whether the plaintiff has the right to possession of the property. Trials in unlawful detainer cases are generally heard within 20 days after the landlord requests a trial date.

Tenancies may be terminated for reasons other than nonpayment of rent, for example, at the expiration of a fixed term lease, or upon foreclosure of the landlord’s interest in the property. A tenancy at-will may be terminated by the use of a “30-Day Notice” or “60-Day Notice,” depending upon the duration of the tenancy.

The wording of eviction notices is critical, and even a slight defect may render the notice ineffective. For example, if a “3-Day Notice to Pay Rent or Quit” fails to include a provision for forfeiture of the lease, the tenant could pay the rent after the expiration of the 3-day period and be entitled to retain possession of the premises. (CCP §1174)

Since unlawful detainer actions are summary proceedings, they are not generally suitable for the trial of complicated ownership issues, such as the validity of title. However, courts have considered title issues where an eviction of a homeowner results after a foreclosure based on principles of due process.

Conduct that constitutes a non-curable breach may permit the landlord to serve a 3-Day Notice to quit upon the tenant based upon nuisance, including the sale of illegal substances or the possession of unlawful weapons. (CCP §1161(4); CC§3485(c))

Various defenses may be available to a tenant, including breach of the implied warranty of habitability of the premises; the landlord waived the notice to quit; the notice to quit does not contain a forfeiture clause; the landlord retaliated against the tenant for making a complaint to a governmental agency (which is sometimes known as retaliatory eviction); the landlord breached the agreement in some manner; the tenant exercised his right to repair defects and deduct the cost of the repair from the rent; the landlord committed a constructive eviction that interferes with the tenant’s right of quiet enjoyment of the premises and creates a reasonable apprehension of harm; or the landlord inquired about the immigration or citizenship status of a tenant or occupant of residential property. (CC §1940.3(b))

Leases often contain a provision for the award of attorney fees to the prevailing party. Hence, the losing party may be required to pay the attorney fees and court costs of the prevailing party.

A tenant may have the right to demand a jury trial if the case presents disputed issues of fact.

Persons other than the tenant might be found to be living at the premises as guests or sub-tenants of the landlord’s tenant. Those persons who are occupants of the premises at the time the lawsuit commences may have a right to demand a post-judgment hearing on their possession. A landlord can eliminate potential post-judgment claims of a right to possession by other occupants by serving a “Prejudgment Claim of Right to Possession” and a copy of the summons on all occupants when the case is commenced. (CCP §415.46)

After judgment for possession is given to the landlord, the landlord can obtain a “Writ of Possession” from the clerk of the court and direct the Sheriff to enforce the writ by removing occupants from the property and delivering peaceful possession to the landlord.

Unlawful detainer proceedings are technical and complex, and the parties would be well advised to retain an attorney in these matters. Please call if we may be of service.

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