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The Pursuit of an Unlawful Detainer

Lease agreement with pen and glasses on desk

To slow the rate of evictions, a new California law will give tenants more time to respond to notices of lease violation. The standard 3-5 day response time will no longer include weekends and holidays, so as a property owner any eviction proceedings will be delayed. Read on to understand how this will affect your pursuit of an unlawful detainer, including when you should consider filing.

When an Unlawful Detainer is Warranted

An unlawful detainer action is the beginning of the legal process of eviction. In California, notices related to unlawful detainers are legally viable if they resulted from the following breaches of lease contract:

  • Missed rent. Be sure to set the due date your lease from the outset.
  • Destruction of the rental property that affects its worth.
  • Refusal to vacate after the lease term has ended.
  • Using the rental property for unlicensed businesses.
  • Usage, possession, or creation of illegal drugs.
  • Repeated complaints from neighbors or other tenants, even after notification.

An unlawful detainer is not necessarily to resolve damages or lack of payment; it is a separate case solely to remove a tenant from the residence. You’ll have to file separately for those claims.

Establishing clear criteria for tenant residency can help you to avoid these problems. For example, look for applicants with income 3x higher than rent. They should have good references from current and previous landlords, verifiable credit and employment, no previous evictions, and a relatively clean background. A property manager like RPM Fairmate can conduct in-person tenant interviews, monitor the occurrence and frequency of late payments, and help you to define tenant standards.

Before You File

Payment Deadline Notated in a Planner NotebookFirst, weigh your relationship with the tenant. If the tenant has a long track record of timely payments, good behavior, and lease renewal consider the consequences of damaging that relationship and beginning the leasing process again. You could risk costly vacancies and a bad reputation. When a tenant has proven to be trustworthy, it might be worth it to negotiate limitations on pets or extra roommates. Check local laws for occupancy standards.

If the violation is severe, then look into an unlawful detainer. Leading up to the filing, you have to have extensive documentation of how your tenant has violated their lease, as well as any attempts to contact them, and the tenant’s failure to rectify the situation.

In California courts, examples of case documentation can include:

  • Warning letters and emails
  • Written complaints by third parties, such a neighbor
  • Your own logs or your property manager’s logs of the violation (missed payments, late fees, etc.)
  • Police records
  • Relevant photographs, such as any property damage, an undocumented pet, etc.

They have those three business days to fix the problem, whether they pay missing rent, rehouse their pet, or vacate the leased premises. If they fail to restore their breach of contract, you can file for unlawful detainer. The tenant then has 5 days to respond to the court summons after it is received.

Tenant Defenses

Tenants have their own rights, and no matter how they’ve breached their lease contract, you have to honor those rights or your eviction lawsuit will be invalid. Here are the most common reasons eviction lawsuits are dismissed in California.

  • Failing to Provide Notice: Don’t take eviction into your own hands instead of going through the California judicial system. Even if your tenant has failed to pay rent, you have to provide a three-day notice before filing an eviction lawsuit. Otherwise, the tenant can simply claim they weren’t given notice, which they’re legally entitled to. Failing to follow proper procedure will only add more time onto your eviction case.
  • Removing the Tenant Yourself: Never forcibly remove a tenant from the residence by physical means or intimidation. You also may not attempt to expedite their vacancy by shutting off utilities, removing their property, removing doors and windows, or locking them out. You don’t have the authority to bar a person from their residence, even if you own the residence. This is known as a “self-help” eviction, which can land you in jail and tie you up with your own court case if the tenant sues for damages to their property. In California, you can earn a fine up to $2,000 for unlawful eviction.
  • Tenant Fixed the Problem: If the tenant addresses your concern within their three-day notice, they have a defense and a right to the property. If they move out, you can no longer continue your eviction lawsuit. If you pursue the unlawful detainer in either situation and the tenant has proof of their cooperation, such as a receipt for rent payment, you’ll be in the wrong.
  • Failing to Provide a Habitable Residence: In California, your property has to meet minimum living standards for you to be able to rent it – a locked, sealed, waterproof, weatherproof home with safe wiring and working HVAC. If you don’t maintain your property and fail to respond to tenant maintenance requests, the tenant is legally allowed to withhold rent. A property manager can help to coordinate maintenance requests and conduct property inspections.
  • Discrimination Against the Tenant: As a landlord, you have to comply with the Fair Housing Act, and California’s Fair Employment and Housing Act, which means you can’t discriminate against a tenant based on the following:
    – Race
    – Religion
    – Gender (including gender identity and expression)
    – National origin (including immigration status)
    – Age (including elderly persons and children under the age of 18)
    – Pregnancy
    – Disability or medical condition
    – Sexual orientation
    – Marital status

There can be no proof that the eviction is grounded in these characteristics. This could include previous inquiries you had during the leasing process up to a threat of deportation. Be diligent about your record-keeping so that you have proof of handling all prospective, current, and past residents equally. This means retaining all applications, updating all availabilities, and documenting all violation reports, including what you did to correct the situation. Every instance should be treated fairly.

How to File an Unlawful Detainer

Check California law for the type of notice required for your case. Typically, this is how unlawful detainer proceedings unfold:

  1. Give the tenant notice of the lease violation. Wait 3 days for a response.
  2. Fill out your court summons, complaint, and civil case cover sheet. Name all the tenants you want evicted.
  3. File in the county courthouse of the residence. Pay the filing fee. This fee can be waived but must be returned if the case is won. Make copies of the filing for your tenant.
  4. Attempt to have a server deliver the unlawful detainer in person two to three times and document the attempts. You cannot attempt to deliver this yourself. You can then send the papers in the mail with court permission.
  5. File a proof of service showing that the server was successful in the delivery of the unlawful detainer.
  6. Wait five days for the tenant to respond. If the papers were mailed, wait for 15. In California, this does not include weekends or holidays.
  7. If the tenant does not respond, request a trial date for the decision you want made. The tenant may file for a stay to allow more time to vacate.

Always verify your landlord-tenant laws in your county and city. Hiring a property manager can remove the burden of keeping up with and complying with changing rental laws. Real Property Management Fairmate can apply our extensive knowledge and experience with eviction processes so you don’t have to worry about timeline or costs. We’ll also collect rent on your behalf so we handle delinquent payments and filing. With thorough application processes and move-in procedures, and air-tight rental agreements, we work to ensure quality tenants from the outset. Contact us for more information.

We are pledged to the letter and spirit of U.S. policy for the achievement of equal housing opportunity throughout the Nation. See Equal Housing Opportunity Statement for more information.