Tenant eviction seems like a simple matter of contract law. The lease is up or the terms of the lease were violated and eviction proceeds naturally. But it is not that simple for a number of reasons.
Tenants have rights under California law, and cannot be evicted without a legal proceeding. It’s called an “unlawful detainer” and it is a specific kind of action required in order to remove a tenant. The process can be complicated and it does have to be followed precisely in order to have an eviction take place. If the tenant chooses to fight, it may end up in court.
What is an unlawful detainer?
The process is started by filing with the court a notice that the terms of the lease have been violated. Violation of a lease can take a number of different forms, including:
- Failure to pay rent at the required time, usually the first of the month
- End of the terms of the lease, with no renewal
- Possession of illegal drugs on the premises
- Causing a nuisance to neighbors after repeated warnings
Once the unlawful detainer has been filed, it is important to notify the tenant that the process has been started. From that point, the tenant has three days to rectify the situation if possible before the actual eviction can take place.
There are very specific requirements for serving the tenant notice that an unlawful detainer has been filed as well. It is always advised that a disinterested third party serve the notice like any other legal papers, like a summons. The notice has to include:
- Date the notice is served
- Tenant(s) affected by the eviction
- Contact information on who the rent has to be paid to, including availability
- Total amount due
- Landlord’s signature
From the time the notice is served, the clock starts running on the three day process. If it is possible to provide a remedy in that time, such as paying rent, the eviction can be stopped. Eviction for other causes, such as possession of illegal drugs, may proceed as schedule since there is no remedy, as long as there has been some kind of law enforcement action on the property establishing that drugs were present.
There are many ways to fight an unlawful detainer in California. The most common is to claim that the eviction notice was not properly served. A tenant may also claim that the landlord failed to maintain the property or other terms of the lease. A rent strike is allowed under circumstances like this and it is illegal to take action against a renter who is engaging in a legitimate protest.
The rights of tenants are spelled out in detail by the California Department of Consumer Affairs. It is advisable that tenants and landlords alike become familiar with the law, especially if it looks like an eviction may be in the future.
Whether you are a landlord evicting a tenant or facing eviction yourself, it is usually advisable to have advice from a real estate attorney experienced in landlord and tenant law. The process can be very complicated, especially if it is being contested. In all cases the courts will protect the rights of a tenant and so they need to be understood and the law carefully followed.