About Law Offices of Net T. Ashby and Landlord Services
A Question: About Law Offices of Ned T. Ashby and Landlord ServicesHow long have you been practicing law Mr. Ashby?
Answer: After graduating Yale school of Law in 1974, I was admitted to practice before the California bar in 1975. I first started my legal career in Orange county California and in 1995 I moved my practice to San Jose, California. I have been handling unlawful detainer’s and representing landlords since 1975. I look forward to helping my present clients with their unusual landlord-tenant situations.
B Question: If I wanted more information about you, Landlord Services and your professional staff where can I get this information?
Answer: Click here.
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Non-Payment of Rent
C Question: I’ve got a tenant who owes me rent, what should I do?
Answer: There are a number of rent collection techniques that you can employ, however, if the tenant refuses to pay or simply cannot pay the rent to you within a reasonable time (a reasonable time would be 1 to 15 days, for example) then the tenant should do you a big favor and vacate the premises. Many will move-out, some won’t (how long you wait and what you do can save or cost you money). Those that don’t, you will need to make the decision that it is it in your best economic interest to begin the proper eviction process and properly prepare and serve a three day notice to pay rent or quit upon the tenant.
D Question: Is there a special form or document that I must use for this three day pay or quit notice?
Answer: Yes. Our office has the up to date form to use, in fact, click here for a copy and instructions on how to properly prepare a three-day notice to pay rent or quit. You may also download our specially prepared “Mini Eviction Kit,” which includes a three day notice sample form, a blank three-day notice form, instructions on how to properly prepare this form, an illustration of how to properly serve the tenant with this notice and a cover sheet to be used as a transmittal to our office for further eviction processing, in the event the tenant fails to vacate the premises in the prescribed amount of time . For the most complete and comprehensive eviction notice kit, click here for more information ((LINK?)
Reasons to Evict Using a 30-day Notice to Quit
E Question: I am confused, what’s the difference between any 30 day notice and a 60 day notice, even for that matter, a 90 day notice?
Answer: Good question. The California Legislature in 2007 permanently enacted a law that requires landlords must give any tenant who has resided in the rented premises longer than 12 months a written 60 day notice to vacate the premises (previous to that only a written 30 day notice to quit was required). Any tenant who has resided in the premises less than 12 months must be given a minimum written 30 day notice. With regard to the 90 day notice, the California Supreme Court and Legislature requires that any tenant participating in federally subsidized housing must be given a written 90 day notice to quit regardless of their length of occupancy. HUD’s section eight program falls under this program. Special consideration must be given at this point for landlords to carefully consider any other requirements they may be subject to, such as any rent or eviction control ordinance.
F Question: I’ve got a tenant I want to evict now and it’s not for non-payment of rent, what should I do first? What section above does this link up with, I put as general reasons to evict?
Answer: Unless you are fully experienced in understanding the reasons for and the reasons that you cannot ask a tenant to vacate the premises, I would suggest that you first talk to someone who is a very experienced in this process. Obviously, the first comes to mind is an experienced landlord attorney. Most attorneys will provide you with the necessary guidelines, forms and procedure on how to properly prepare and serve the appropriate notice to quit upon your tenant for free or for a small consultation fee. Most of these eviction attorneys may also prepare and serve the appropriate eviction notice upon your tenant, so that you know it is done in a proper and legal manner.
Also in California a landlord does not have to state a reason on the notice to quit form, nor does he or she has to have a reason, if you do have a reason it must not be an improper one. Improper reasons are described as...
G Question: Like most landlords, I do have one or more proper reasons to ask my tenant to leave my property, should I just go ahead and serve the appropriate 30, 60 or 90 day notice to quit? (Same as above)
Answer: Any time you have to serve your tenant with a formal notice to vacate the premises is probably not the most ideal situation for both landlord and tenant. I believe that it is always best to talk with your tenant and try to resolve any issues you have regarding his or her tenancy. If one or more of those issues, i.e., proper reasons to evict, can not be resolved within a reasonable amount of time, then I think selecting the appropriate notice to quit form is the best course of action. In California, if the tenant has resided in the premises less than 12 months he or she is entitled to be given a written 30 day notice to vacate premises. If that tenant has been in residency longer than the 12 months he or she then is entitled to receive a 60 day notice to quit. In the case of a federally subsidized tenant, such as section eight program, then that tenant must be given a written 90 day notice to vacate, including a copy mailed to their respective County Housing Authority that manages your tenants section eight account. Again, a landlord must consider whether or not he or she is subject to any rent and/or eviction control ordinance that is enforce in the city in which the rental property is located.
H Question: Can you list a number of reasons that I can’t evict my tenant under a notice to quit, such as a 30, 60 or 90 day notice?
Answer: As stated earlier, California landlords do not need a reason to prepare and serve their tenant with the appropriate 30, 60 or 90 day notice to quit, however, if the landlord does have a reason it must not be an improper one. From the chart below we have listed improper reasons and proper reasons with some explanation for each. This is not a comprehensive list and it is strongly advised that you contact an experienced landlord attorney before you resort to giving your tenant a notice to quit.
I Question: Should I prepare and serve my notice to quit upon the tenant on the first of the month or after he or she pays the rent?
Answer: Another good question. Ideally, and because you want to minimize potential rent loss, it is best to serve a 30, 60 or even a 90 day notice to quit after the tenant pays his or her current rent. That way, you will have been paid, in the case of a 30 day notice to quit, the last months rent. On the other hand, some landlords prefer serving the 30, 60 or 90 days notice to quit prior to the rent due date, figuring the tenant will not pay the rent due and thereby triggering the landlord into preparing and serving a written three-day notice to pay rent or quit. In this case, the landlord would not have to wait until the 30 day notice to quit expires and may act upon the expiration and non-compliance of the three-day notice to pay rent or quit, and then file an eviction court action (unlawful be tenant) in court.
J. Question: Do you have some sort of checklist or do’s and don’ts of giving my tenants a 30, 60, or 90 day notice?
Answer: Yes. Click here. LINK
Questions 1-34 updated 2/4/09 from BM
1. “How long will it take to evict my tenant?”
2. “I need to evict my tenant, what is can I do legally to get him out of my property?”
3. “Can’t I just change the locks or cut the tenant’s water off to get him out and avoid all this legal nonsense?”
4. “Do I have to give each and every tenant in the unit a 3-Day Pay or Quit Notice?”
5. “I've dealt with other attorney eviction services and most have recommended that I always serve my three day notices on the FIFTH of the month. Do I have to do that?”
6. “How do I ‘count’ the number of days my tenant has to comply with a 3-Day Pay or Quit Notice?”
7. “I have heard that the tenant sometimes gets eight days to comply with the three day notice. Is that true and why?”
8. “Do I have to accept partial payments of rent after my tenant receives the 3-Day Pay or Quit Notice?”
9. “How much does it cost to evict my tenant?”
10. “Do I need a lawyer to evict my tenant?”
11. “Who pays for all of the legal expenses, the landlord or the tenant?”
12. “Just what is the ‘Summons and Complaint’ and ‘Unlawful Detainer’?”
13. “The 3 day notice has expired and I want the tenant out, how do I take the next step to evict my tenant?”
14. “How do I know what my attorney eviction service is doing, and should I call daily?”
15. “What happens if my tenant cannot be personally served with the Summons and Complaint, or the process server can't find the tenant?”
16. “Are there other ways to evict a tenant? What if he makes a nuisance of himself or forces another tenant move-out, or gets a pet?”
17. “My tenant has not paid his rent in two months. I have started the Unlawful Detainer process, and now he is complaining about maintenance problems around his apartment. Do I have to correct them now?”
18. “What if my tenant or one of his guests makes the place uninhabitable? Let’s say he breaks a window, am I still responsible?”
19. “Should I have any contact with the tenant once I have authorized you to start the eviction lawsuit (unlawful detainer)?”
20. “I am in the middle of my Unlawful Detainer action and now the tenant wants to pay the rent he owes. Do I have to accept the money and let him stay?”
21. “What happens if my tenant files bankruptcy while I am evicting him?”
22. “I rented one of my houses to a tenant under a one year lease. How do I evict him now?”
23. “What do you mean by the tenant’s ‘default’ and what is a ‘writ of possession’?”
24. “I’ve heard of ways my tenant can delay the eviction process, what are they and how do you differ from other attorney eviction services in eliminating or avoiding these delays?”
25. “My tenant filed an answer in response to the Summons and Complaint and my attorney has asked for a spot on the court’s trial calendar. Do I have to appear in court?”
26. “How long does it take to get a trial date in a contested eviction?”
27. “How do I know when the Sheriff serves the Five Day Notice to Vacate?”
28. “The Sheriff served the Five (5) Day Notice, how do I know if the tenant is out?”
29. “The Sheriff has served his eviction notice and is scheduled to meet me next week. What can my tenant do now to delay the eviction?”
30. “Do I have to meet with the Sheriff when he completes the eviction?”
31. “When the Sheriff comes out to evict the tenant, will he move the tenant's belongings out, too?”
32. “Do I have to return the tenant's security and cleaning deposit?”
33. “How do I get the money that the tenant owes me after he has moved out?”
34. “I’ve gotten the tenant out and obtained money judgment, but, the tenant has done a lot of damage to my rental, what can I do about that?”
Answers from above questions - I will do a final reformatting of all of this at final approval.
1. “How long will it take to evict my tenant?”
Your attorney should fast track your cases from the moment you authorize your eviction attorney to proceed and the Complaint is filed with the court, to the time the Sheriff turns possession of the rental unit over to the landlord. When the tenant does not file a response with the court (an uncontested case), your eviction can be completed in as little as 13 days. Uncontested cases account for approximately 65-80% of all cases filed. Ask for your attorney for any promotional or information material he or she may have that could explain why 13 days is the minimum (or click here). Normally you can count on getting your rental unit back within 13 to 27 days of filing the Complaint.
If the tenant files a response with the court (a contested case) there is usually a reason and, then the eviction will take a bit longer. Your attorney will have to appear in court at least once, this then cannot be helped, and so, it will take between 20 to 45 days to complete the eviction. Most eviction attorneys work hard to cut this delay to the minimum amount of time the crowded court calendars will permit. Experience enables your eviction attorney to detect, in most cases in advance, the possible snares and pitfalls which can cost you time. Your attorney should be one of the most experienced attorney supervised eviction services in the State of California. An experienced attorney should be able to design tactics to circumvent delay, and do the job in the minimum time allowable. No matter how smart your tenant may think he is, the truth is that he has one case to learn from, your attorney should have had thousands of cases to learn from so that you, the landlord client, has the overwhelming advantage of his experience and expertise!
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2. “I need to evict my tenant, what is can I do legally to get him out of my property?
The first and most important decision you need to make is which attorney eviction service to employ. Find one that has done thousands of case and has hundreds, if not thousands of satisfied clients. Assure yourself that he or she knows that they can successfully resolve all your landlord/tenant problems and get the problem tenant out fast. Period. Can your attorney; resolve some problems without even filing with the court? Sound legal and property management advice must be available to all clients all the time.
So, your decision should rest on the experience and demonstrated competence of whomever you employ to effect the tenant eviction.
Your first and most vital action (as opposed to decision) in the eviction process is the proper preparation of an eviction notice and the proper delivery of the notice to the tenant. In almost all cases, either a three-day notice to pay rent or quit, or a 30, 60 or 90 day notices to vacate will be served. Click here for our attorney’s pamphlets titled "How to Properly Prepare a Three Day Pay or Quit Notice" and "How to Properly Serve a Three Day Pay or Quit Notice." They should also have an all-inclusive package titled, “Landlord’s 3 Day Eviction Kit.” Since this is the MOST CRITICAL STEP in perfecting your right to the return of the property, a few minutes invested in reading and learning how to prepare and serve the notice can pay big dividends in days or weeks saved if later it is determined that the notice or its delivery was found to be defective. If you are unsure about the eviction notice process this is the time to consult with your attorney’s office!
If the tenant complies with the notice, then your problem is solved, at least to the extent that you have your rent or the rental unit is available for re-rental. If the tenant does not comply with the notice, then you may initiate the court proceedings necessary to evict him by telephoning or faxing to your attorney’s office the necessary information and the authorization to begin our service.
The most important decision is selecting an experienced and knowledgeable attorney eviction service, which not only can provide advice on the legally correct way to effect the eviction, but also can view the whole problem from the client perspective and devise clear and practical ways to deal with and, if possible, avoid problems which may arise.
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3. “Can’t I just change the locks or cut the tenant’s water off to get him out and avoid all this legal nonsense?”
No! You may not do things like throw the tenant's belongings into the street or change the locks (even if you concoct a story about being “in the process of fixing the locks”) without providing the tenant with a key. Nor can you remove the front door, cut off the water, or otherwise try to improperly harass the tenant into moving. If you do, you may incur very serious civil or even criminal liabilities, and likely be prosecuted for them. There are plenty of attorneys around who will take such a case because they know that a landlord has the assets to pay the judgment they will ultimately be awarded and your liability insurance carrier will gladly throw you to the wolves with no coverage for willful unlawful acts. Instead, go back or find an experienced landlord attorney. He or she will have your tenant out for you for a fee that compares favorably with the cost of one or two weeks of rent alone, and there will be no troublesome lawsuit against you later on!
4. “Do I have to give each and every tenant in the unit a 3-Day Pay or Quit Notice?”
No. The law requires that, of the original tenants, or the tenants who have signed the rental agreement, only one needs to be given the notice. If other people have moved in later, then these must separately be given a notice. Interpretations of the rules may vary; so if you are serving your first notice, call your eviction attorney to find out what the court policy is in your judicial district.
5. “I've dealt with other attorney eviction services and most have recommended that I always serve my three day notices on the FIFTH of the month. Do I have to do that?”
No. Most attorneys and some eviction services miss the mark by thinking of the law as the only rent collection tool available. You may serve a three-day notice any time after the tenant is late in paying rent. There may be good reasons not to serve the notice at the earliest opportunity. There are two pitfalls to look out for:
1. Make sure your tenant has at least one business day to pay the rent before the notice is served. The rule is that if the rent is due on the first it is actually payable on the first, if it is a business day, or the first business day thereafter, and is only late the day after that business day. For example, let us assume your rent is due on the first. On January first, you receive no rent. January first is a holiday, so it would normally be due on the second. But if New Years day was a Sunday, then the second would be a holiday as well (the Monday after a legal holiday falling on a Sunday). This means that the rent would actually be due on Tuesday the third. If not paid on Tuesday the third (the first business day of the month), then you may serve your notice as early as the fourth, or Wednesday. If your rental agreement provides for, say, a grace period expiring on the fifth, or you customarily give your tenants till the fifth to pay the rent, then you would use the same routine to determine the last day to pay, only this time, you would treat your agreement as if it called for the rent to be paid on the fifth day of each month, instead of the first -- regardless of whether the agreement says it is due on the first.
2. Before sending out a notice, check your records carefully and directly question, in person or by phone, the person who actually collects your rent, to determine whether it was actually received. Nothing can be more destructive to a mutually beneficial business relationship with a good tenant than giving him a three day notice, or, worse, posting it for all the other tenants in the building to see, when he has actually given the rent to the resident manager but it got stuck in the mail slot, or not timely given to you for some other reason not the tenant's fault. In the case of a good, long-term tenant who mysteriously fails to pay rent, you may wish to invest in a phone call to see what the problem is. For example, if the tenant usually pays by mail, the mail can slow up around the holidays. Good tenant retention is always good business!
You are never obligated to serve a notice on the tenant. In the case of a long-term tenant in a temporary bind, you may wish to work with him in the expectation that the problem will be resolved. Just don't let him get too far behind (never let a tenant become more than one month behind) - it’s just too difficult for any tenant to come up with “that much money.” When you do have to serve the tenant with his notice to pay up, it is important that you know how much time the tenant really has, this is further discussed below.
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6. “How do I ‘count’ the number of days my tenant has to comply with a 3-Day Pay or Quit Notice?”
This is a simple and three step process:
1. Do not count the day the notice was served; then,
2. Count the next full three (3)
days (read further in this pamphlet if you had to use the mail to effect service); and,
3. Ensure the last day or "third" day is a business day, if not, go to the next business day for tenant compliance.
So, if you handed the notice to the tenant on a Friday, skip that day, give the tenant all day Saturday (1), Sunday (2) and Monday (3). If you still have not received the rent on Monday, provided Monday is not a holiday, then the tenant has failed to comply with the notice. If your tenant has been mailing his rent to you, then determine compliance by the date of the postmark on the envelope (and keep the envelope as well as the check).
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7. “I have heard that the tenant sometimes gets eight days to comply with the three day notice. Is that true and why?”
This is no longer applicable. Although this law does not apply to anymore, always try to personally hand the notice to the tenant or any one of the other tenants NAMED on the eviction notice. You will may save yourself from tenants who will say they haven’t been served by the other substituted methods of service.
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8. “Do I have to accept partial payments of rent after my tenant receives the 3-Day Pay or Quit Notice?”
No. During the three-day compliance period, you need only accept full payment of the rent demanded in the notice. After the notice period expires, you do not have to accept any rent from the tenant, but if you do, you cannot begin an unlawful detainer proceeding without service of a new notice, demanding the balance of rent due. Whether or not to accept a partial payment or full payment after the notice expires depends on how much is due and the individual tenant's history. If the tenant who owes two months rent for a total of $2500 offers to pay $2000, you may wish to accept this offer so as to reduce your rent loss. If you do, make sure to obtain a definite commitment as to when (the exact date, the time, the place and form of payment) the balance will be paid, and promptly serve a new notice if it is not. It’s just not a good idea to make a habit of accepting partial payments after your three-day notice is served. Some judges may take the position that you have created a course of dealing with the tenant and changed the otherwise plain meaning of the three-day notice. If you are going to cut the tenant slack in this way, do it once and only once or any time any tenant pays late include the following statement on the rent receipt; “Acceptance of this payment does not constitute a waiver of landlord’s right to collect the rent in full and on the due date as prescribed in the rental agreement.”
Every successful landlord or manager knows that once a tenant gets behind in his rent, if it is not paid up in full and in a very short time, eviction, skip out or bigger losses loom on the horizon. A good rule of thumb is have any rent balance paid in full within fifteen (15) days but not later than the end of the month. Consider too, the tenant who has been habitually late, not taking care of the rented premises, or has caused other significant problems, that you should politely and firmly refuse to allow that tenant to pay late or in partial payments and proceed with the eviction process. You'll find another tenant who will be responsible.
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9. “How much does it cost to evict my tenant?”
Aside from your rent loss, which your attorney works very hard to minimize, you will be charged fees, which constitute our compensation for services, and what your attorney refer to as “costs.” These are reimbursements for payments which your attorney makes to the court clerk, process servers, Sheriff, and others who are engaged as part of the overall service. Most attorney eviction services charge flat fees. A few charge by the hour. Your attorney probably charges flat fees for almost all uncontested, and most all contested evictions. In very rare instances our attorney may have to charge on an hourly basis, and if so, you would be advised in advance if this is the case.
The eviction costs represent approximately 50% of the total amount paid in the price. These costs vary with the number of tenants to be served and, sometimes, if an amended complaint, posting order, etc. has to be filed in court. Our fee schedule contains all the information you will need to calculate the cost of your eviction if uncontested, and can be obtained from your attorney’s office by request. Our billing statements, unlike many others, detail and describe each and every fee, court, and sheriff cost. You won’t receive a mere one line billing invoice stating “for professional services” from us!
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10. “Do I need a lawyer to evict my tenant?”
No. You are free to file your action and handle it yourself "in propria persona". Some landlords can do this, and quite successfully, having acquired a knowledge of the court systems that rivals that of most attorneys. However, your attorney should always recommend that you obtain legal representation. Working knowledge of the requirements of procedure, which can vary from court to court, can usually be gained only from experience, and going to court is not ordinarily what the typical landlord does most. When you deal with the Law Offices of Ned T. Ashby, unless you specify otherwise, legal representation is automatic, by an experienced attorney whose specialty is cutting his way through the legal nets and snares that otherwise would consume many hours of your productive time (don’t try Small Claims Court, it does not have the jurisdiction to evict tenants).
Someday, though, it may be possible for the landlord or manager to go to the courthouse and initiate an unlawful detainer by approaching a computer screen, touching appropriate boxes on the screen, paying the filing fee, and watching his action being electronically filed and processed. The technology is available now, and as the volume of cases in the court system grows, this advance is probably inevitable. For now, however, attorney assistance is a must for the prudent California landlord especially those who want to leave the eviction chore to professionals.
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11. “Who pays for all of the legal expenses, the landlord or the tenant?”
Initially, each side is responsible for compensating their own professional assistants. The landlord compensates his own attorney eviction service according to whatever contract he has made with them.
If you have a written rental agreement, and it contains a clause which provides that the party who prevails in any litigation will recover attorney fees, then, whoever is left with possession of the rental unit at the conclusion of the case, is awarded a reimbursement for his attorney fees in the final judgment. This is nearly always the landlord. (Some older agreements provide that the landlord always recovers attorney fees, by law this is treated as if it provided that the prevailing party recovers.)
There are two important factors to remember before too much enthusiasm is generated about this possibility. First, nearly all courts have published and follow "pre-approved attorney fee schedules" which limit the amount of attorney fees which can be recovered in the event of default or trial. In the case of evictions, the fees in the schedule are based on a percentage or other relationship to the amount of money awarded in the judgment, regardless of the amount of work involved, with an arbitrary minimum in the $300-$500 range. This, together with your award of recoverable costs (see below) is usually enough to cover all of your combined eviction expense, or nearly so, (most of the time it is more). In the event it is lower it is possible to make a separate application for additional fees, but this is rarely worth the effort. Second, you must be prepared for the fact that your award of attorney fees, regardless of how much it may be on paper, is only worth as much as your tenant is. If your tenant is financially irresponsible (and this is usually the case if he has stopped paying rent), it may be a very long time before this award, or your past due rent, is actually collected). The judgment is good for ten (10) years and renewable for another ten (10). Your attorney should have seen cases where a former tenant, trying to buy a car or a house, has been forced to pay a judgment half a dozen years old or more. These judgments do usually carry a ten (10) percent simple annual interest rate. For more about collecting money from the tenant, please read further questions and answers below.
If the written contract does not contain the type of clause mentioned above, or you have some sort of oral agreement with the tenant, then you will only be able to recover “court costs.” You will also receive costs in addition to your attorney fee award if you qualify to recover fees. These recoverable costs are defined by the Code of Civil Procedure, and in the typical case are restricted to the filing fee for the complaint, plus the process server fee to serve it. It is possible later to recover Sheriff's eviction fees and other miscellaneous items amounting to a total of less than $400. This is always a separate fee for service item, and whether or not it is worthwhile to pursue this avenue will vary on a case-by-case basis.
The parties in the course of settlement negotiations can vary all of the above. Sometimes you may wish to permit the tenant to attempt to reinstate his tenancy even as late a stage as any date of trial. Such agreements typically involve the entry of judgment against the tenant for possession, but a proviso that if he pays all the rent plus the actual attorney fees and out of pocket expenses (regardless of the type of rental agreement or court attorney fee schedule) then judgment is deemed satisfied and the rental agreement reinstated. Such an arrangement is usually precluded by other considerations, though, however, when agreed to whether it is by rental agreement or settlement, the tenant is ultimately responsible for all attorney fees and court costs.
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12. “Just what is the ‘Summons and Complaint’ and ‘Unlawful Detainer’?”
The summons and complaint is the second set of documents which is served on the tenant in the typical case, coming after the eviction notice expiration. The complaint is a document, prepared by our attorney on your behalf, which, when filed with the court, makes the court officially cognizant of the fact that you are demanding that a certain individual be put out of your property by appropriate government officials. It contains information, in a narrative format, about the ownership of the property, the identity of the tenant, the location of the property, the nature of the landlord/tenant agreement, how much rent is past due, that a notice demanding possession of the premises or rent payment has been served, and when, that the tenant "unlawfully detains" the premises, (hence "unlawful detainer"), and a request that the tenant be evicted and ordered to pay what he owes. When this is filed, the clerk issues another document called a summons, which your attorney also prepares. This document contains information about who is suing whom, the location of the court, and notification that the tenant must file a response to the complaint within five days or he will be evicted without trial.
As a package, the two documents are generally referred to as the "unlawful detainer." Technically, though, the term "unlawful detainer" refers to the proceeding itself, which is specially set up and governed by a unique set of statutes at Code of Civil Procedure §1159 through §1179a. These sections contain special rules of procedure and priority, which permit this sort of proceeding to be resolved in an extremely short (for the judicial system) time.
13. “The 3 day notice has expired and I want the tenant out, how do I take the next step to evict my tenant?”
After you telephone your attorney’s office and request that he or she continue with the eviction, in response to your request, he or she will that day prepare and file the complaint and have the summons issued in court, and transmit the complaint to one of our carefully selected process service firms. The first attempt to serve will occur that evening. When the tenant's time to respond to the complaint runs out, your attorney will have his default entered promptly, judgment for possession of the property entered, and a writ directing the Sheriff to evict issued by the Clerk. Finally, your attorney coordinates with the Sheriff to have the final eviction notice posted and communicate directly to you the date on which you can expect to meet the Sheriff to get possession of your property back. After you have possession, your attorney can obtain a “money judgment” against the tenant on your behalf for any money he owes you.
A copy of the Summons and Complaint in Unlawful Detainer must be served or properly delivered to the tenant. Unlike the 3-day notice, which may be served by the landlord or his agent, the summons and complaint must be served by the eviction attorney’s process server or other qualified third party. Please find more information on this subject in question
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14. “How do I know what my attorney eviction service is doing, and should I call daily?”
Your case not only receives priority treatment within the court system, evictions and collections are all your attorney should do. From the time you instruct your eviction attorney to proceed with your tenant eviction, give your eviction attorney a couple of days to do our job and wait for your first report to arrive by phone, mail or fax. When you do receive a report from us, please take time to read it. Your attorney should have tried very hard to describe and explain each step of the eviction process as it relates to your case.
As part of the Landlord Services Quick Eviction concept, thorough written reports are mailed or faxed to our clients at each stage of the proceeding describing progress to date and any decisions which the client needs to make. The reports are sent to you within 24 hours of your initial contact with your attorney’s office, just after the tenant is served with the summons and complaint, and will advise of any contested court hearing, and the Sheriff eviction date. Another extra service at no extra charge!
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15. “What happens if my tenant cannot be personally served with the Summons and Complaint, or the process server can't find the tenant?”
No problem! Well, small problem, anyway. Your attorney carefully selects only experienced and skilled professional process servers who make every effort to hand the documents directly to the tenant. So if your tenant cannot be personally served it means either that he has moved out or is "ducking service," as the seasoned professional process servers say. In these cases, your attorney is required to use reasonable diligence in effecting personal service (which is the preferred method of service). The policy of most courts is that to exercise due reasonable diligence, there must have been three (3) attempts to serve the tenant over a two to three day period, at different times of day. Typically our process servers will try more often, sometimes as many as five times. If this still does not result in personal delivery, then your attorney is authorized to accomplish service in one or a combination of two other ways, one of which always works.
1. Substituted Service: The papers are delivered to a person at the premises who is apparently in charge of the premises and is over the age of 18. Then the papers are put in an envelope, and mailed with first class postage. The person to whom the papers are handed is informed of their general nature and instructed to hand them to the tenant when he returns. Note that if he does not do so that does not invalidate the service. Our process server will then usually serve the person he has handed the papers to with his own copy of the summons and complaint, making this individual a party to the proceeding as a DOE I or DOE II if your attorney can find out his identity. Your attorney does this to avoid illegal occupants from delaying the process by filing a claim of right of possession at the time of the Sheriff eviction.
2. Posting and Mailing: This method requires a court order. If after due diligence the process server can't personally deliver or do a substituted serve, then your attorney immediately applies to the court for an order that the summons and complaint be posted on the premises and a copy mailed to the tenant by certified mail. These orders are granted on the day your attorney applies for them, except in the most inefficient courts, where there may be a one, two or three day delay.
Both of these methods of service give the tenant an additional ten (10) days to respond to the complaint, which is why your attorney tries so hard to get personal service. Your attorney also instructs the process server to continue to attempt personal service for the next ten days (when the tenant has five days remaining to answer anyway and the point of diminishing returns has been reached). This is an effort to save most, if not all of those additional ten days. There is no extra charge for this service.
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16. “Are there other ways to evict a tenant? What if he makes a nuisance of himself or forces another tenant move-out, or gets a pet?”
Yes. There are a large number of reasons why you might justifiably evict a tenant besides non-payment of rent. For example, if the tenant is keeping a pet or some endangered species (see left) prohibited by the rental agreement. Permitting or maintaining a nuisance on the property is another reason, as you suggest. This booklet is pretty much limited to non-payment situations -- the most common. If you have another type of problem which you think requires your tenant's removal, feel free to contact us. This type of eviction usually requires careful consideration and some planning in advance, although it often costs no more than a non-payment of rent eviction. Your attorney should be glad to help you lay the foundation for the elimination of the problem. These other kinds of evictions can become frustrating, if you don't start off with the best legal and property management advice from our attorney and Certified Property Manager.
17. “My tenant has not paid his rent in two months. I have started the Unlawful Detainer process, and now he is complaining about maintenance problems around his apartment. Do I have to correct them now?”
Yes. There are many practical reasons you will want to make such repairs in a timely manner. Sure, you are not thrilled about spending money on a delinquent tenant. But if your tenant attempts to fight the eviction (and such complaints out of the clear blue are usually a prelude to just that) you will be appearing before a judge who has the discretion to deny you possession of the premises if he thinks you are an unscrupulous landlord. By doing such repairs as soon as the complaint is made, you will impress the judge with your responsibility. This will bolster your contention that you would have handled these matters long ago if your tenant had only mentioned them. Furthermore, you will eventually have to make these repairs anyway, and doing them now will eliminate any possibility of deterioration of your property while you are evicting the tenant.
Maintenance problems which might delay, or stop altogether, an eviction can be eliminated if the landlord complies with California law, which requires the landlord to provide premises with the following characteristics:
1. Effective weather proofing, including repair of broken windows (you can charge the tenant if you can show he broke them). This includes the roof. Leaks from the roof can cause many sleepless nights not just for the tenant but also for the landlord who tries to evict. The roof must be repaired or replaced by a qualified individual or a substantial rent credit given to the affected tenant before any eviction ensues.
2. Plumbing facilities (water, sewerage and gas, if the rental unit is supplied with gas), which comply with applicable law and are maintained in good condition.
3. A water supply approved under applicable law which provides hot and cold running water.
4. Heating facilities and electrical components which conform to applicable law and are maintained in good working order.
5. An adequate number of garbage receptacles, which are maintained in clean condition and good repair.
6. Floors, stairs and railings maintained in good repair.
7. Eradication of any pest or vermin, and maintenance of areas under the control of the owner or manager free of all debris, filth and rubbish. A tenant who complains about cockroaches, rats and other household pests should be contacted by a qualified pest control company you engage, even if you believe the tenant is bringing in or breeding these.
If you have a tenant who is complaining about repairs, maintenance or pests and not paying his rent, call your attorney’s office to find out more about your responsibilities and that of your tenants.
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18. “What if my tenant or one of his guests makes the place uninhabitable? Let’s say he breaks a window, am I still responsible?”
If the rental unit is damaged by the tenant so that it no longer complies with the criteria set out in the previous answer, then the tenant, is responsible, not you. The problem is in documentation, and proving who caused the problem. There is a big difference between what you know, and what you can prove to a third person who has no pre-existing knowledge of the situation (that is, a judge). If an issue arises about the unfixed broken window later on when your tenant has failed to pay rent, the judge may well make a mistake and believe your tenant, even if the tenant is lying and says it is all your fault. For this reason, your attorney should recommend that you go ahead and do the repair anyway. If it is something like a plumbing stoppage, you can usually get documentation of the cause. Most plumbers who snake out a toilet stoppage, for example, will note what they find, and this will often point the finger of blame right at your tenant. You can then deduct the cost of repair from the security deposit. If you have a written agreement and it provides for it, you can then force the tenant to replenish the deposit, and if he does not, evict him for that reason (see your eviction attorney first). If you have an oral agreement, and the tenant refuses to replenish his deposit, you can consider terminating his tenancy on a thirty-day notice and replacing him with a tenant who will not abuse the property. Some tenants get it in their minds that they can make repairs or improvements to the property without the landlord’s permission. Some are even brazen and start deducting rent for any little thing.
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19. “Should I have any contact with the tenant once I have authorized you to start the eviction lawsuit (unlawful detainer)?”
Probably not. First, this is one of the advantages engaging our services offers. Your attorney will should assume full responsibility for communicating with your tenant, subject to your overall instructions, of course. If settlement offers are made, he or she conveys them immediately. While you always have the final say, let your eviction attorney put his or her experience to work for you in these negotiations, and relieve you of the stress of dealing with your tenant after the decision to evict is made. You have probably been dealing with him for sometime now and are tired of his games and broken promises. Second, from the strategic point of view, all discussions should be made through the same person or entity. If the tenant talks to both of us, he may, if he is sophisticated, undercut both of us, severely weakening the position which your attorney has just greatly strengthened by initiating the eviction process. On the other hand, if he speaks to and through your eviction attorney only, he or she is presented with a united front, and cannot play one of us against the other or lean on your generosity anymore. You would be surprised how often that sort of problem occurs, and the chaos it creates can be devastating. You always have the final say because it is your tenant and your property, but let your eviction attorney does the actual talking and negotiating. All this is especially true if you have habitability or other complicating problems. Some eviction attorneys just want to do the paperwork, leaving you to handle the troublesome tenant. Not with us!
A WORD TO THE WISE; don’t let a tenant do work at the property in exchange for rent and don’t let a tenant unilaterally start deducting for “any little thing that might come up”!
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20. “I am in the middle of my Unlawful Detainer action, and now the tenant wants to pay the rent he owes. Do I have to accept the money and let him stay?”
No. You are under no legal obligation to take money from the tenant after the notice to pay rent or quit expires, after you have given a thirty-day notice (see above) or after you have started the eviction action filed in court. But here, as in so many cases, practicality can override legal prerogatives. You are free to accept money and let the tenant stay at any stage of the proceeding, even up to the moment the Sheriff puts the tenant out. Your decision will be reached by weighing what the tenant owes, against what he offers and his history with you as a tenant. Keep in mind that, in most cases, the payoff he offers will leave your tenant financially strapped. If you think that you may just be postponing the inevitable, do not even think of accepting a monetary offer unless you feel comfortable initiating the process again in a few weeks. If he offers enough, you may not mind doing this.
From our experience, such agreements should protect you by containing the following features. First, there should be some written memorial of the arrangement. Sometimes this can be as simple as a confirming attorney letter, other times; a formal, written agreement approved by a judge is required. Second, it should specify just what payments are required and when they should be made. A substantial up front payment is a must. Others can be scheduled in the agreement itself and should not be longer than 3 months. Certified funds, as opposed to checks, should always be required, and the schedule should be strictly enforced. Third, there should be a strict sanction for failure to comply. Typically, your attorney includes a proviso that judgment will enter in your favor without the necessity of going to court, and the tenant can be evicted forthwith (this is commonly referred to as a "drop dead clause"). Finally, regardless of the exact method of payment, it should include a recapture of your actual out of pocket eviction expenses to date, including your eviction fees. One of the services your attorney should offer is the negotiation and drafting of this sort of agreement.
Let our professionals guide you through the negotiation process and drafting of any final stipulation. By doing so the agreement or stipulation has “teeth” in it. In the event the tenant violates the stipulation, you won’t have to start the eviction process all over again. Just call your attorney’s office, inform your eviction attorney of the breach and, when appropriate, your attorney will instruct the Sheriff to evict by serving the tenant with the final five (5) day notice to vacate.
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21. “What happens if my tenant files bankruptcy while I am evicting him?”
A delay tactic your attorney short circuits! The Bankruptcy Act provides that in each filing, creditors are automatically restrained from continuing efforts to collect money or reclaim property from him without permission of the court. This has been interpreted to mean that a landlord must stop his eviction action until further orders from the bankruptcy court. If you know that your tenant has a case pending in Bankruptcy Court before you initiate the eviction, tell us, whether he has listed you in his bankruptcy or not.
Most tenants who file do so as a stall, a few are in good faith attempting to reorganize their debts, or take advantage of the law to obtain a fresh start. Either way, you and your attorney must act fast to obtain an order from the Bankruptcy Court permitting you to proceed to evict your tenant, because, until you do, your action is at a dead stop. Because bankruptcies are dealt with by the United States Bankruptcy Court and evictions are usually in the Superior Court of the State of California, a separate proceeding, referred to as a Motion for Relief From Automatic Stay, must be initiated in the Bankruptcy Court. Your eviction attorney may offer this service to clients who are confronted with this problem and it usually consumes 3 to 4 weeks from the bankruptcy notification to the hearing date. At the hearing, the court considers whether or not relief should be granted to you. Because most residential evictions do not involve leasehold interests or other unusual circumstances, the court normally orders relief. This gives your eviction attorney permission to start or continue with the Superior court Unlawful Detainer proceeding.
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22. “I rented one of my houses to a tenant under a one year lease. How do I evict him now?”
You cannot break the lease without cause. Your tenant can only be evicted for (1) failing to pay the rent, or (2) breaching a written term of the lease, or (3) creating a nuisance on the property. For example, if you have forbidden the tenant to have a pet, and he has a dog on the property, you can give him a three-day notice to remove the dog or to vacate. If he keeps the dog, then you can evict him. This type of notice must be drafted with great care, and proof of breach of the lease or nuisance carefully documented. Any such notice must state a specific cause informing the tenant of the reason for termination of the lease. We strongly urge you to consult us before you even discuss the breach of lease with your tenant.
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23. “What do you mean by the tenant’s ‘default’ and what is a ‘writ of possession’?”
Once your unlawful detainer is filed with the court and served on your tenant, your tenant has only a limited time to file a response with the court. If he does so, the case is contested and your attorney should go to trial before a judge. If he does not file a response, then your attorney should notify the clerk and request that the tenant's default be entered. The entry of a default precludes your tenant from attempting to open the case and request a hearing without special and rare proceedings to do so. At the time the tenant's default is entered, your attorney should submit a judgment to the clerk for the clerk's signature, who enters judgment against the tenant and orders return of possession of the property to you. This Clerk's Judgment for Possession of Real Property contains no provision for your back rent. That comes after you have your property back.
At the same time as the Clerk's Judgment is presented, your attorney also submits to the clerk a document titled “Writ of Possession of Real Property”. This is a written order to the Sheriff or Marshal, directing him to remove the tenant and restore you to physical possession of the property. Your attorney should deliver this Writ (on the same day it is issued, if possible, on the next day at the latest) to the Sheriff or Marshal who has jurisdiction of the area in which your property is located. This peace officer then is required, within three (3) business days of receipt, to either deliver to the tenant or post on the property a copy of the writ, and a notice requiring the tenant to move out within five days. At this point, each Sheriff's office differs, but, in general, they will set a date on which you should go to the property and see if the tenant has moved. If he has not, or you cannot tell, then you may call the officer directly to schedule an appointment for the formal eviction. This is usually done the same day or the next day. One of the services, which should be included in your flat fee, is the coordination of all peace officer activities up to the point where you schedule the eviction and accept return of the property from the officer.
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24. “I’ve heard of ways my tenant can delay the eviction process, what are they and how do you differ from other attorney eviction services in eliminating or avoiding these delays?”
Good Question! Your attorney should be one of the leaders in developing all sorts of ways of accelerating the uncontested and contested eviction process. A case in point; a few years ago a particular regional group of tenants started to routinely demand jury trials after filed a request for trial setting, thereby, making the clerk re-set the trial date to a later date. One wily landlord attorney started to file his or her own jury demands along with a trial setting to eliminate this tenant delaying tactic. It worked! The tenants and tenant attorneys yelled foul and the presiding judge said, “wait a minute, it worked for you just fine, now that the landlord’s lawyer is doing it, you don’t like it.” The judge changed the court procedure on jury demands so that it no longer causes additional delay. This alone has saved landlords incalculable dollars.
Let’s start with when you first call your attorney’s office and ask for information about our service. Unlike many other attorney eviction services that don’t advertise, have firm or company brochures, “how to” information pamphlets, fax-on-demand forms service, or a telephone system that during non-business hours will accept eviction notice and unlawful detainer filing requests by an automated attendant, your attorney should have all of these extra value items available to our clients, at no additional cost. Most importantly, your attorney should have a staff of well-trained professionals who have legal, property management experience, or some who are landlords themselves. They will discuss, without rushing, all the case particulars and try to find legal and property management solutions to solving the problem. Your attorney does not automatically assume that every time a client calls that they must engage our services for a fee. Our attorney and property management advice is usually always free.
Once your attorney ascertains what the situation is, he or she will advise you of the best course of action, immediately e-mail, mail or fax you a brochure, an information pamphlet that will assist you further with your particular problem or offer to serve a notice or file the unlawful detainer case. All over the phone or via the Internet and our website! No office visit is necessary, although your attorney should like to see and talk with clients. Most attorney eviction services require that you make an appointment, or have eviction documents ready for pick up. Your attorney should be different. He or she starts the eviction over the phone, or on occasion, when there is not a clear-cut eviction, they should have the staff and resources to come up with options that may not involve initiating the eviction process. This means you are saving yourself from unnecessary legal expense. For example, when a new client calls us, preparing a new client package is a breeze because it has all been “computerized”. If a client has a fax, or e-mail address they receive the necessary information within minutes of hanging up the phone. Our popular “Landlord’s 3 Day Eviction Kit” can be faxed or e-mailed and put to use that same day. You don’t have to wait for something in the mail or go out and find your own documents at a local stationary store.
Authorizing your eviction attorney to initiate a 3-Day Pay or Quit or unlawful detainer filing in court can be done by way of facsimile machine or e-mail attachment too. Your attorney should do not need the original rental agreement, eviction notice (nonpayment of rent), or notice proof of service to start your case. Not even a copy in most cases! Years ago an attorney came up with the novel idea that since attaching any of these documents to the complaint is not required, (he strategized), why bother to do it and let the tenant or tenant’s attorney examine it for potential errors and missing dots above the “i’s”.
Summons and Complaints are prepared within minutes of your authorization and if you faxed your eviction attorney the documents your attorney will either confirm your request by phone or by facsimile transmittal. How can your attorney prepare a complete Summons and Complaint package within a few minutes, while other attorney eviction services take hours or even days to do the same? Your attorney should be taking advantage of a sophisticated and simple to use computer software program that produce all of the necessary documents. Doing the paperwork is like falling off a log. This allows your eviction attorney to file the eviction action, locally, that same day and regionally within 24 hours. This means that your action is prepared and filed immediately, and is out for service that night when the tenant is most likely to be home.
The four major causes for eviction delays are: 1. Process server unable to personally serve ALL the tenants with the Summons and Complaint (discussed in question 15), 2. Tenant proclivities to fight the eviction action, 3. Trial judgment not signed by the judge when an action is contested, (refer to question 27) and 3. The tenant filing post judgment motions, answers or bankruptcy. See our pamphlet titled, “What Happens if My Tenant Fights the Eviction Action.”
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25. “My tenant filed an answer in response to the Summons and Complaint and my attorney has asked for a spot on the court’s trial calendar. Do I have to appear in court?”
Yes! When your tenant files a response, your attorney will need at least one person to act as a witness. This need not necessarily be the owner, but must be a person who has direct, actual knowledge of how and when the eviction notice was served and how much rent is due. Note, actual and direct knowledge does not mean that someone told the witness that the notice was served. Written "affidavits" also will not do. The person required is the person who served the notice or actually saw it being served, or the person who collects the rent. Sometimes, more than one person is required to satisfy the requirement of direct knowledge. Don’t worry if this is your first or one-hundredth time, our attorney prepares very well and makes you always feel comfortable with the trial proceeding.
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26. “How long does it take to get a trial date in a contested eviction?”
After the tenant has been served with the Summons and Complaint he usually has five (5) days to respond to the court. Approximately 30-35% of tenants will file an “Answer.” Your attorney immediately requests from the court the soonest available date. California law requires that the trial date in a contested case start within twenty (20) days of the date a Memorandum to Set Case for Trial is filed with the Clerk. The clerk must give ten (10) days written notice by mail to all parties of the trial date and location. So you can count on a trial within ten to twenty days of the date your attorney learns your case is contested. Occasionally, more than twenty (20) days is required, as, for example, if holidays or weekends make setting within twenty days impossible. Also, some courts with very crowded calendars "cheat" by marking the Memorandum to Set "received" and not stamping it "filed" until they know they have a trial date available within twenty days. Even in these cases, however, the trial date is always within a month of the date it is requested. Because of our experience and production of quality paperwork, our cases travel smoothly throughout the court's scheduling process. Most every case is set within 20 days and your attorney promptly mails to you a trial date notification report that describes the date and time of trial, our strategy for a successful trial result, what you can expect, a sample of witness questions and he or she should include an estimated date when the tenant will be evicted after the trial.
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27. “I am at court with my attorney, the trial judge has ruled in my favor, now when will the tenant be evicted?”
First, your attorney should have ready as many as four (4) proposed judgments and submit the appropriate one to the judge, at the end of the trial. So, our attorney goes to court equipped with judgment forms, which cover almost every contingency. He will submit one of these to the judge who will sign it on the spot or later that day. The judge's clerk then enters the judgment in the register of actions or the judgment book. From this point, the procedure is the same as that discussed above under the default and writ of possession question. Sometimes, particularly where the tenant has children in his family, the judge will give the tenant some additional time to vacate, almost always after the tenant pays some money to compensate you for the additional time. In these cases your attorney should coordinate with the Sheriff to schedule the eviction for the next available day after the additional time expires.
Your eviction attorney should work hard at minimizing loss of time between the moment the judge decides you may evict and the moment the Sheriff actually moves the tenant out. Your attorney should prepare several alternative judgments, to cover almost all possible contingencies. Make sure your attorney takes great pride in making sure that everyone does his or her part to guarantee that you get your property back timely.
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28. “How do I know when the Sheriff serves the Five (5) Day Notice to Vacate?”
Each Sheriff or Marshal has his own specific procedures. When you receive our report after the tenant is served with the Summons and Complaint, it will contain an estimated eviction date and some particulars as to how the officer in your jurisdiction operates. Please be advised that the Sheriff does not evict on weekends or holidays and because of scheduling and serving requirements, many Mondays and Fridays. Generally, however, it works like this:
Once the Sheriff serves the “Notice to Vacate” the tenant is given a minimum five (5) days to vacate. The Sheriff has it “easy” in one regard, if the tenant isn’t at the premises; he POSTS the notice anyway, which is perfectly proper.
1. The Sheriff will notify your eviction attorney of service of his final notice and give your eviction attorney a tentative eviction date. Es promptly pass this information on to you by way of a telephone call or facsimile transmission.
2. Once you have been told the Sheriff’s notice has been served and what the tentative eviction date is, you should drive by the property to see if there are any preparations being made by your tenant to move.
3. You or your agent must meet the Sheriff at the appropriate time, to accept turnover of the property to you, if the tenant refuses to vacate voluntarily.
4. Have a locksmith or your handyman standing by to pick or break the lock (if necessary) to let the Sheriff in, (only at the time the Sheriff instructs you to do so), and to change the locks (always necessary) after the Sheriff has completed the physical eviction. Most Sheriffs will keep open eviction case files for a few days after the last day for possession; however, it is not a good idea to rearrange different last dates for possession.
5. Have a camera and, if possible, a witness with you. If the tenant has left personal property behind (even trash bags and dust balls), take photographs and make notes. When the pictures are developed, you might want to have the witness sign them on the back to verify he was there when they were taken. This will shield you from spurious allegations that you stole the tenant's valuables. See also question number 32 below.
6. Start lining up your vendors to clean, paint, repair, refurbish, and assist in re-renting the property. You may even want to start your ad, with an availability date comfortably past the Sheriff's scheduled eviction. The whole point of the eviction, after all, was to be able to rent with minimum delay, to a new tenant who will pay the rent on time.
7. Start thinking about how you might collect the money the tenant owes. Your attorney should commence this process for you immediately after the Sheriff returns possession to you, and will flag your case for special handling if you tell your eviction attorney to start now.
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29. “The Sheriff served the Five (5) Day Notice, how do I know if the tenant is out?”
This is another area your attorney should really excel at, let me tell you... because he or she provide detailed advice on how to tell if the tenant has vacated, abandoned or is still in possession. Most tenants though, vacate during the eviction process or skip out before the Sheriff actually returns possession after service of the final eviction notice. Your attorney should recommend that the landlord always “play it safe” in these situations. Assuming the tenant did not telephone or contact you and inform you that he has vacated, you will need to investigate whether or not the tenant has actually vacated the premises. Talk with neighbors and inspect the exterior of the tenant’s premises. Many times neighbors will see the tenant packing up and loading a truck. When you drive by or stop to examine the property, take a look around and check to see if the tenant’s car is there, are newspapers piling up on the doorstep and is their mail overflowing from the mailbox?
If you don’t see any strong indications that the tenant is gone, then keep playing it safe by preparing and posting a 24 hour Notice of Intent to Enter Dwelling (available from your attorney’s office or our fax-back service). The next day, after the 24 hours notice has expired, take your pass key, knock two or three times on the tenant’s front door, identify yourself, and then, if you do not get an answer, unlock the door. Now open the door just enough to announce yourself, and ask for the tenant. If no response, and you don’t see any furnishings, push the door open more, (if you do see furnishings or sense that someone is there, lock the door and close it). Otherwise continue walking in and keep identifying yourself and asking for the tenant. Go in further and look around. Walk into the kitchen; do you see any pots and pans on the stove, in the sink? Check for silverware, any in the drawers? Pull open the refrigerator door, any food or is it molding? Next, go into the hall and bedrooms, do you see any bedding, beds, clothes, furniture? Last, check the bathroom, most tenants will take their toiletries, including their toothbrush, comb, etc. If the premises appear to be vacant and any personal property remaining is worth less than $300 then you should call your attorney’s office to obtain a second opinion and make a judgment call as to re-taking possession. Your attorney’s office, cannot advise you to retake possession, without the Sheriff’s final execution of the writ. However, you can make the best decision given the circumstances of the situation. If you determine the tenant has moved out then retake possession and call off the Sheriff. If you are not sure, it is best to let the Sheriff “officially” return possession to you; it’s only a few more days. If the tenant returns and finds out that you have prematurely re-taken possession he may claim a wrongful eviction and file a lawsuit against you.
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30. “The Sheriff has served his eviction notice and is scheduled to meet me next week. What can my tenant do now to delay the eviction?”
The good part to this answer is that since the vast majority of cases are uncontested, they remain that way unimpeded through any Sheriff final eviction. Unfortunately, in about one (1) in every twenty (20) cases, there are one (1) or more things, which your tenant might do to delay the eviction at this point in time. Consider too the many things your attorney should do to counteract and avoid or minimize their effect. Yet, like it or not, we live in a world that is filled with attorneys, some say too many, and tenants as well as landlords who have many legal rights they may or may not exercise. Such as filing bankruptcy, requesting additional time from the court, etc.
Some tenants file bankruptcy, in the mistaken belief, fostered by some unscrupulous paralegal services, that this would postpone the eviction indefinitely. Your attorney should efficiently deal with this problem for you. See question 21.
The most common type of delay is the lazy tenant asking the court for additional time to move out. As if all those official looking eviction documents and buildup of rent money was some sort of game like Monopoly! There are tenants that do no planning whatsoever regarding moving out. Rather, they wait until the last minute, panic when they receive the Sheriff’s notice, and then find ways to further take advantage of “the system”. The tenant, with some help from Legal Aide or tenant oriented paralegal services, or even some attorneys, will prepare what is called a proposed “stay of execution” of eviction. Almost all Superior courts will grant the tenant additional time to vacate provided the tenant has made a proper application. The tenant is required to submit papers to the court explaining why he cannot vacate as scheduled. With these papers, he must submit a rental payment to the court in the amount of the daily rental value multiplied by the number of days he is requesting to move. For example, if the monthly rent is $750.00, this works out to $25 per day rent. Should your tenant request an additional ten (10) days to move, the court will require that he submit $250.00 in cash or money order, to the court clerk, as a condition of the judge signing the postponement. The clerk will then forward the rent money to you and may request your attorney’s office to prepare and file a simple declaration requesting payment, which your attorney should submit on your behalf at no additional charge. No time is lost with the Sheriff either, the court transmits a copy of any stay order and the Sheriff reschedules the final eviction.
Most courts will grant only one (1) such stay of eviction, and because the rental value is submitted to the court with the application, the court feels that such a postponement does you no harm. Your attorney should understand, however, that postponement of the eviction could cause repercussions, which are not always obvious, particularly if you have a new tenant waiting to move in on a date you have set in reliance on the scheduled eviction date. For this reason, in cases in which your attorney should believes the tenant may be requesting additional time, your attorney should files a declaration setting forth our objection to any application for postponement of the eviction. In cases in which a stipulated judgment has been entered by agreement your attorney should includes a clause precluding any postponement of the eviction and where there is a serious chance of harm, our lawyer will go to court, if notified of the application, and represent your interests there.
In any event, unless you agree to the contrary, the court cannot “stay” enforcement of its judgment for more than forty (40) days from the date of judgment, and will collect the rent for the period of delay. Typically though, stays are for one (1) or two (2) weeks in duration only.
Finally, there may be a claim of right of possession (in the “ud” business this is referred to as a “CROP”) by a person other than the original tenant. Such a person, who occupies the premises prior to the filing of the complaint, is entitled to have his claim heard by the court before the eviction can take place. Such claims are made through the Sheriff's office and are heard usually within five (5) days of the date that they are made.
At the court hearing, you, our eviction attorney and claimant will present the case before the judge. The court will decide if this adult occupant (claimant) is living at the premises with your consent, express or implied, and whether or not he has paid any rent, prior to the filing of the complaint. The testimony will determine if he is a “tenant” and therefore entitled to be named in the original eviction action. This is why your attorney should ask for the names of all adults who are in occupancy of the premises, whether they have made a rental agreement with your or not. In addition, your attorney should instruct our process server to serve any adults who admit to living on the premises as "Doe" defendants at the time service occurs on your original tenant. Such individuals can be cut off from this type of claim if your attorney should know about them in advance. Otherwise, you run the risk of having to start over again as to the unauthorized occupants. Remember, the question is whether the occupant occupies the premises with your consent express or implied. Excellent pre-screening of cases avoids most every single “crop.”
While there is a separate legal procedure for attempting to root out such claims at the time the action is filed (referred to as “Pre-judgment Claim of Right of Possession”), the procedure is not well thought out, saves no net time, and may, in fact, extend the time required to evict if there are no real claimants to the action.
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31. “Do I have to meet with the Sheriff when he completes the eviction?”
Only if the tenant or any one else is occupying the property. In that event, someone must meet with the Sheriff to formally receive turnover of the property. An obstinate tenant who refuses to recognize or take seriously the Sheriff's Notice occurs with too much frequency. One would think that after all the legal notices, the luxury of not paying rent for some weeks or months and the knowledge that he has no chance of staying, he would want to avoid the embarrassment of the Sheriff eviction. Physical tenant eviction only happens in about one (1) out of ten (10) cases, but that is no consolation if you are the one meeting with the Sheriff. And if this is so, someone, you, your agent, or your resident or property manager, who has qualified himself with the Sheriff in advance, must be there. In addition, the Sheriff must have access to the rental unit or he cannot perform his duties. Have a handyman there to pick or break the existing lock (even if you have a key, the tenant may have changed the locks without your knowledge). Regardless, even if changing the locks is not required, you will certainly want to change the locks after the Sheriff finishes so that the old tenant can't just move back in and besides, the new tenant will feel secure about knowing the locks were changed.
Once the Sheriff has removed any tenant and returned the premises to you, you will be issued a receipt for possession and be authorized to re-take the subject premises.
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32. “When the Sheriff comes out to evict the tenant, will he move the tenant's belongings out, too?”
No. Before 1970, the Sheriff would employ a keeper to inventory and pack up the tenant's property. Since then this responsibility has devolved to the landlord. You must deal with the property in the manner required by law in order to avoid any possible liability to the tenant later on.
You must store the property in a place of safekeeping for at least eighteen (18) days after the eviction. This can be on the premises or at another location. "Safekeeping" means simply as safe as you would store like property which belongs to you. You should always make a written inventory of what was left sufficiently specific to permit the property to be identified, and do so in the presence of a witness. Photographing the premises and its contents is a good supplement to a detailed written inventory.
During this 18-day period, the tenant must be permitted access to the place of safekeeping to retrieve his property. This shall be done only during normal business hours. If he wishes to remove property, you must permit him to do so, and may only condition return of the property on his paying the reasonable cost of storage (NOT THE BACK RENT, not the rental value of the property, just what it would reasonably cost to store the property itself). Smart landlords don't bother; however and just let the tenant remove the property to get the stuff off the premises. Some times you might run into a lazy and persnickety former tenant who just wants to grab his toothbrush and medicine. Items that are needed because of a medical condition or badly needed by the former tenant should be turned over without any talk of reimbursement for storage costs. However, any former tenant who only moves a few items needs to be informed that EVERYTHING must be removed from the premises and IMMEDIATELY. Don’t give the tenant the opportunity to take advantage of the situation and come back on numerous occasions to move a box now; some shirts and another box later on. Be firm and stand your ground. State to him that it will be necessary for him to get a truck, a moving van or friend’s car with a hitch to pull a trailer so that the job of moving can be done at one time and during consecutive daylight hours.
If the tenant tells you to that he is leaving behind personal property that he doesn’t want, confirm your understanding that you may dispose of it. Later, send him a note, nonetheless, memorializing the conversation.
WARNING: DON’T LET THE TENANT STAY OVER NIGHT IN THE SHERIFF RETURNED PREMISES USING THE EXCUSE OF GETTING AN “EARLY START” IN THE MORNING. IF YOU DO, YOU COULD BE CREATING A WHOLE NEW TENANCY!
If, after the 18 days, the tenant has still not claimed all of his personal property, then you must make a decision. If you believe the property in its present condition is worth less than a “flea market” auction value of $300.00 you may dispose of the property any manner you chose. If, however, it is worth more than $300, then you must have a public sale. Our pamphlet titled "What To Do With the Tenant's Personal Belongings After the Eviction Is Completed" contains the details on this subject.
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33. “Do I have to return the tenant's security and cleaning deposit?”
Not necessarily. But you must always ACCOUNT to the tenant for what you have done with his deposit. The deposit is a prepayment by the tenant for possible damage to the property over and above normal wear and tear, cleaning, and any other amounts he may owe at move out. Sometimes such a deposit is earmarked, such as a pet deposit, or last month's rent deposit. Such deposits should be set off against the item for which they are intended first, but the balance can still be set off against other amounts which the tenant owes. Your attorney should recommends that you decide, at the start of the tenancy, how large a deposit you need, considering any pets, last month’s rent and other factors, and COLLECT ONE DEPOSIT, calling it a security deposit.
EVEN IF THE TENANT OWES YOU MONEY, YOU MUST ACCOUNT FOR THE DEPOSIT AND NOTIFY THE TENANT!
The accounting referred to above must be sent to the tenant at his last known address (which can be the premises if he has not given a forwarding address) within twenty (21) days of the last day of occupancy by the tenant, or the date you regained possession of the property if you do not know the date the tenant moved out. Some rental agreements specify fourteen (14) days, and this controls if you have such an agreement.
You can deduct from the deposit the following items, and you should deduct them in this specific order:
1. Restoration of any damage to the premises, over and above normal wear and tear.
2. The cost of cleaning the premises.
3. Any other amounts the tenant owes, such as any late charges, broken window or plumbing stoppage charges, past due or prorated rent and lastly; court costs and attorney fees, if you have been awarded attorney fees or have a contract that says you are entitled to them.
Your attorney should advise deducting in this order because if your tenant has vacated before judgment was entered against him, then he or she can go on to get a judgment for your rent and costs. But if you apply the deposit against rent and costs first, then a whole new action, probably in small claims court, would have to be filed before you can have a judgment for damage and cleaning costs. This would necessitate a new expense and hassle. Call your attorney’s office and ask for a free copy of our security deposit accounting form, which includes “how-to” instructions; this will help ensure your accounting is complete.
Finally, after you have done the above, mail the accounting (keep a copy) to the tenant’s forwarding address. If you do not know it, mail it to his last known address - the rental property. If he owes you money, include an unequivocal demand (but no threats). For example, “This is my demand that you pay the amount as shown and in full not later that fifteen (15) days from receipt of this statement.”
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34. “How do I get the money that the tenant owes me after he has moved out?”
If your case was contested, you will have obtained a judgment for money when the judge rendered his decision. If your case was uncontested, that is, it went by default, and then your attorney can follow through to obtain a money judgment for you on your request. All your attorney needs is for you to contact your eviction attorney with the last day the tenant was in possession of the property, and the amount of any deposit credit, which the tenant may have against his rent obligation, after deductions for repair and cleaning of the unit as, described in question 33.
When your attorney initiates the money judgment process, you will be asked to sign a document called "Declaration in Lieu of Personal Testimony". This paper includes all the information which the court in your specific jurisdiction requires to enter a default judgment for the rent, costs, and attorney fees, if appropriate, which the tenant owes. This part of the process is assigned a much lower priority by the law (not by us) than your case was assigned when the tenant was still unlawfully detaining the property. Still, in most cases, your attorney can have your money judgment for you within a few days to a month of the day you ask for it. Some of the courts require that you physically appear to present testimony as to what the tenant owes (San Rafael, Richmond and Sacramento Courts). While this seems unnecessary, it is still a requirement and you will be advised of the date of the hearing as soon as the court schedules it.
Once the deputy court clerk enters the judgment, it will appear in the public record and be valid for ten (10) years. The judgment will attach to and become part of the tenant's permanent credit record. During this time, it will be nearly impossible for the tenant to obtain any major extensions of credit (such as for a car or a home, or for any sort of credit card). So even if you do nothing more, there is a reasonable chance of being paid. Your attorney probably has been contacted in many cases by tenants he or she has evicted six, seven or more years ago, wanting to pay the judgment off. The judgment accrues interest during this time as well.
The next step is collection. There are avenues you can actively pursue to collect your money. First you have to determine the collectability of the judgment. Is the tenant still working? Does the tenant have any checking or savings accounts? Does he or she have any other assets? Is the tenant still in the area? For example, if your former tenant has paid rent by check, your attorney can have the checking account levied to collect the judgment. If he has a job, your attorney can obtain an earnings-withholding order to have up to one quarter of his net pay withheld and transferred to you to pay the judgment. If you have this information, you may wish to ask your eviction attorney to initiate such proceedings. They require advance payments to the Sheriff or Marshall to initiate, but can be extremely effective in collecting your money.
If none of these vehicles is available, the chances of getting your money are relatively low. In these cases you should refer the matter to your favorite collection agency or look one up in the yellow pages. They will charge a contingent fee of between 40% and 60% of what they collect. Be sure to ask for quarterly or semi-annual progress reports. Be mindful, however, that if your tenant is content to live under ground, or file bankruptcy, you will never see the money. But don’t give him a free ride, at least turn it over to a collection agency. He might surface one day like fresh air and sunshine! Keep in mind that the sooner the account is acted upon the greater your chance of collecting your money. For more information on this subject ask for our booklet entitled, “How to Collect the Money Judgment.”
35. “I’ve gotten the tenant out and obtained money judgment, but, the tenant has done a lot of damage to my rental, what can I do about that?”
Lots. Since your tenant is out, you will already have prepared a security deposit accounting (see above question 33), which includes the amounts necessary to repair damage to the property. Now deduct from the accounting the amounts you obtained as a judgment for rent, costs and attorney fees, because you cannot obtain more than one judgment for the same thing. What is left is what you can pursue the tenant for in small claims court (if it is less than $5000.00), and this is a decision which must be weighed in light of several factors.
Do you know where the tenant is now? If you file in small claims court, you will have to serve the tenant with more legal papers. Do you have a well-founded expectation of actually collecting from the tenant if you get a judgment? The judgment will only be as valuable as the tenant's ability to pay. If the tenant is what your attorney refers to as "judgment proof", then you might more profitably use the three or four hours of time the small claims action will consume making money in other ways.
If you decide to go to small claims court then make sure you are prepared. Have documentation of everything you have spent, and be sure to bring along a copy of your security deposit accounting, together with all the receipts and invoices (such as the one you received from us), which prove you have paid, or need to pay, the amounts you are claiming. Rehearse your presentation, and keep it to three or four minutes (which is a long time if you use it wisely and economically). If you need help getting ready, your attorney will consult with you to give you pointers on how to present your case.
As with any money judgment, the one you obtain in small claims court is good for ten (10) years. But do not delay your collection effort; start as soon as you can. Studies show that most money is collected within the first few months of entry of judgment. After that, the collection rate falls off dramatically.
If you have any other questions about the eviction or collection process, call us. We believe a fully informed client is well on his or her way to becoming one of our satisfied customers!
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