Evicting a tenant can be one of the most stressful situations for any landlord in the State of California. You’ve spent your hard-earned money to create the perfect environment for your tenants by buying the real property, remodeling it, providing state-of-the-art appliances, and ensuring excellent service when your tenant requests work or has an issue. You’ve done everything in your power for your tenant to gladly offer up their payment of rent. And when the rent doesn’t get paid, you begin to wonder...
What do I do? Should I be heavy-handed or understanding of their situation? Is the tenant telling me the truth? Will they really send the rent in another week, another month, another couple months? Does the tenant understand that rent will continue to add up on the first of each month when they ask for continued extensions? Whatever strategy you take, here is the breakdown of the process to evict a tenant for their failure to pay rent.
1. Tenant doesn’t pay rent.
Once your tenant stops paying rent, informal communication might be your best strategy. Perhaps your tenant had an extraordinary bill to pay a couple days ago, or perhaps the tenant lost their job and is on the search for a new one. Or perhaps the tenant stopped paying rent because they believe the home is no longer safely habitable due to a lacking necessity, such as running water. (Tenants are usually still liable to pay rent even if there is an issue that needs to be fixed, depending on what the issue is, and when (if) the tenant gave you written notice of the issue). Once you understand the tenant’s situation, determine your willingness and financial strength to become a resource to your tenant. Are you willing to provide extensions to the tenant? How long can you safely allow your tenant to “bounce-back” and make a meaningful attempt to collect the pieces of life and bring rent up to date? If you’re unwilling or aren’t financially able go to step 3 immediately. If you have some time, let the tenant know you are willing to work with them during this time and make an attempt to secure a partial rent payment, or clear terms on when you and/or they expect to be able to bring rent up to date. If the tenant cannot provide a concrete date, or has otherwise notified you of their inability to pay rent, perhaps it’s time to move to step 2 and 3.
2. Informal Resolution. (Optional).
It’s possible that the landlord and tenant might be able to informally resolve the issue without formal process. Some options include for the tenant to immediately vacate (move out) of the home, the tenant to make additional partial payments each month until caught up, or to pay the entire amount of missed rent on the first of the next month. There are multiple other options not mentioned here. Ensure that whatever agreement you come to, you reserve your rights as a landlord, that the obligation of the payment of rent for the missed month has not been waived, and that your agreement for repayment is in writing with clear performance, terms and conditions.
3. 3 Day Notice to Pay Rent or Quit.
Once the rent is late, it’s time to serve your tenant with a 3 day notice to pay rent or quit. Although step 2 is informal resolution, step 3 can be done at any time after your tenant doesn’t pay rent (skipping step 2, or performing step 2 after the notice is served). The 3 Day Notice is a critical step in the process of eviction because the 3 Day Notice serves as the basis for your unlawful detainer action. The 3 Day Notices essentially requires your tenant to perform in the alternative: the tenant must remit payment of rent due, or, in the alternative, move out and deliver possession of the property back to landlord within 3 days after service of the notice on the tenant. The 3 days does not include Saturdays, Sundays or judicial holidays. The notice must be served pursuant to one of the methods described in the applicable section of the California Code of Civil Procedure. Further, the notice must include an accurate statement of the rent due, and other required statements pursuant to the Code of Civil Procedure and California Civil Code.
4. Filing of Unlawful Detainer (“UD”) Complaint.
Should the tenant fail to pay the rent required within the 3 day notice period, and should the tenant fail to move out and return possession of the property to landlord, your next step is to draft and file the UD. The California Judicial Council created form UD-100 to serve as the complaint. The Complaint and other required papers are then filed in the Superior Court of the county in which the property is situated and must be filed at the appropriate courthouse. The Los Angeles and Orange County Superior Courts provide a filing court locator platform on their websites. Once you receive a conformed (stamped) copy of your complaint back from the Court, the Complaint is then served on the tenant. Service of the Complaint should be performed strategically. Please note, there are additional forms that need to be filed with the Court along with the complaint. Further, the complaint and summons must be served by someone who is not a party to the lawsuit. This should be a registered process server.
5. Next Steps
Once the UD is filed and served on your tenant, the tenant has the opportunity to file a responsive pleading, usually in the form of an “Answer”. If the tenant fails to file an answer within the time allotted after service, you may request the entry of default against the tenant and proceed to obtaining default judgment for possession of the property. If the tenant does file an answer, a trial will be set where both parties will be able to present their case (and defenses) and the Judge will decide on the merits whether the landlord is entitled to possession of the property. Once judgment is rendered, the only step left is enforcement of that judgment.
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The unlawful detainer process can be stressful, tedious and requires strict compliance with California law. In the eviction process, substantial compliance (being close enough) is not sufficient. The law must be followed exactly as stated in the code, or the Judge will dismiss your court action and you will need to re-start the entire process over again. This is why it would be prudent to hire an attorney, even for the drafting and service of the 3 day notice.
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