Virtually every landlord has experienced a problem tenant. Whether the tenant has failed to pay the rent, failed to vacate, becomes a nuisance or is committing waste, etc., the ultimate remedy lies within a court action called an “unlawful detainer.” It is through the unlawful detainer process that a landlord may evict a tenant and regain possession of the property. This article will briefly explain the unlawful detainer process from serving the notice through the execution of the writ.
Step 1: Except upon on a tenant’s failure to vacate upon the expiration of a fixed term lease, a notice must be served on the tenant before initiating the unlawful detainer process. A notice such as a 3-Day Notice to Pay Rent or Quit, 3-Day Notice to Quit for Nuisance, 3-Day Notice to Quit for Waste, 3-Day Notice to Perform Covenant or Quit, or a 30/60 Day Notice to Terminate the Tenancy, must be served upon the tenant prior to filing a complaint with the court. Service of the notice can be effectuated in three ways: personal service, substitute service or post and mail.
- Personal service requires serving the notice directly to the tenant. Personally serving the notice on the tenant is the best method of service.
- Substitute service requires that you leave the notice with a person “of suitable age and discretion” and mail the notice by first class mail to the tenant.
- Post and mail requires you to post the notice to the door after knocking, and then mail the notice via first class mail. If you have to post and mail, which most landlords commonly do, knock on the door before you post the notice to the door. Failure to knock may increase the risk of an adverse result.
Step 2: If the tenant does not comply with the terms set forth in the notice, then you must file a lawsuit (called an unlawful detainer) with the court and serve a copy of the summons and complaint on each tenant. Please note that the person serving the summons and complaint must not be a party to the action. We recommend using a registeredCalifornia process server for this step.
Step 3: Once the summons and complaint is served on the tenants, you must wait for the tenant to file (or not file) a responsive pleading with the court within a prescribed period of time. If the tenant is personally served, he/she has five (5) days to file a responsive pleading. Substitute service or service by court order (order to post) allows the tenant 10 additional days to file the responsive pleading (a total of 15 days!).
- If an answer to the complaint is filed, then the landlord must file an “at-issue memorandum to set the case for trial”, appear in court on the scheduled date and argue your case before the judge or jury.
- If the tenant fails to file a response within the allotted time, you may file a “Request for Entry of Default” with the court. The clerk of the court will process the default and issue you a “clerk’s judgment” for possession only that will allow you to lock out the tenant (see step 4).
Step 4: Once you obtain a “writ” for possession of the premises, you must file the writ with the Sheriff located in the county where the rental property resides. The Sheriff will post a notice of lockout on the rental property indicating a date the eviction will take place.
If the tenant is still in possession of the property at the lockout date, the Sheriff will execute the writ and remove the tenants from the premises. Once possession has been returned to the owner through the lock out process, the Sheriff will give you a return on your writ indicating that the eviction has been completed. [Be sure to bring a locksmith with you on this day if you cannot change the locks yourself].
Conclusion: In most cases, tenants fail to file a responsive pleading within the time allowed by law. As a result, you will be entitled to a default judgment for possession of the premises.
However, some tenants understand the unlawful detainer process and can make life more difficult for the landlord. For example, a tenant could file a demurrer, file an answer raising the breach of implied warranty of habitability, request a jury trial, file bankruptcy, or apply to the court to stay the writs, etc.
If you have questions on how to complete a notice; whom to name in the notice and/or complaint; how to respond to a demurrer or answer to the complaint; how to counter a habitability claim or what to do if the tenant is receiving government benefits, please feel free to contact our office.
Scott M. Harris is a partner with the Law Offices of Harris, Rosales & Harris. This article is for informational purposes only and should not be construed as legal advice. Harris, Rosales & Harris is a full service law firm specializing in Landlord-Tenant law, representing landlords only. We can be reached at (925) 417-8700 or you may send an email to [email protected].