The Eviction Process
Eviction…you didn’t want it to come to this. But sometimes, there is no other way. If you find yourself in this position, follow these guidelines:
Step 1 – Written Notice
In order to start the eviction process, the landlord must first give the tenant written notice. There are 5 types of notices that California landlords can use in starting the eviction process:
- 3-Day Notice to Pay Rent or Quit – used when the tenant is behind on rent
- 3-Day Notice to Perform Covenants or Quit – used if the tenant is violating terms in the lease or rental agreement and the problem can be fixed (e.g., pet added under ‘no-pets’ rental agreement)
- 3-Day Notice to Quit– used if there have been ongoing problems with a tenant that, under California law, allow the landlord to evict the tenant within 3 days (e.g., uses property to do something illegal)
- 30-Day or 60-Day Notice to Quit – A landlord can use a 30-day notice to end a month-to-month tenancy if the tenant has been renting for less than a year, but must use must use a 60-day notice to end tenancy if the tenant has been renting for a year or more. However, in rent-controlled cities, the landlord must check with local city ordinances to find out the circumstances under which eviction is permissible.
- 90-Day Notice to Quit – used for tenants in subsidized housing (Section 8)
There are 3 ways to serve the notice:
- Personal service: the notice is handed directly to the tenant in person.
- Substituted service: If the tenant is not home, you may leave the notice with a member of the household where the tenant lives (if the house member is at least 18 years old) AND then mail a second copy to the tenant at the property.
- Posting and mailing (“nail and mail”) service: If there is no one at home (or if no one at home is 18+ years old) to leave the papers with, tape or nail the notice to the front door (or somewhere where it can be seen easily) AND mail copy to the tenant at the property.
If the notice is not correctable (3-Day Notice-to-Quit), or, if the notice is correctable and the tenant does not comply within the allotted time, the landlord can then file an unlawful detainer case once the notice period ends. Day #1 is the day after the notice is served, and if the last day of the notice period falls on a holiday or weekend, then the notice period ends the next work day.
Step 2 – File the Unlawful Detainer with the Court
Once the notice period expires, and if the tenant does not respond, you may start an Unlawful Detainer case, for which you will need to submit specific forms which can be downloaded from the internet. For more information regarding the form required in the county in which your property is located, go to: www.courts.ca.gov/documents.
STEP 3: Serve the Tenant
You must serve a copy of each of the forms you filed to each adult in the rental unit. You can hire a process servicer or ask the Sheriff to serve them for a fee. Each adult in the residence must be served individually.
STEP 4: File the Proof of Service
The person who delivers the copies to the tenant(s) needs to fill out the Proof of Service of Summons (POS-010), which then needs to be filed with the court prior to the scheduled court date or before the judgment is entered.
STEP 5: Wait 5 days
You must give the tenant(s) 5 days to file an answer to your complaint. If they DO NOT file a response, your next step will be to get a Default Judgment. If they DO, your next step will be to get a trial date.
STEP 6: Request for Entry of Default/Default Judgment OR Request to Set Case for Trial
If the tenant does not file a response, the landlord can file a request for default judgment. If the tenant does file a response, the landlord can file a request to set case for trial, which will cause a hearing to be set 20 days from the date of the request.
STEP 7: Obtain a Writ of Possession
If the landlord is granted possession of the property by either a default- or court-judgment, s/he can now request that a Writ of Possession be issued by the Clerk and served on the tenant by the sheriff. The writ allows the sheriff to remove the tenant if s/he does not adhere to the Notice to Vacate that the sheriff posts on the rental property.
STEP 8: Post Notice to Vacate Document
Provides the tenant five days to move-out. If the tenant is not out by the noted eviction date, the sheriff will forcibly remove him/her from the property.
While the use of a lawyer to evict a tenant is not required, a good attorney with experience in such cases in the rental property area could well be worth the cost overall. An incorrect filing or missed deadline date could extend the eviction process and end up costing a landlord more in the long run. However, the landlord should check in with his lawyer regularly and remain informed of the progress being made at each step of the eviction process. For more information on California landlords’ rights and responsibilities in the eviction process, see http://www.dca.ca.gov/publications/landlordbook/evictions.shtml .