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Eviction

Before the Case

In general , before a a landlord can try to evict a tenant through the Court process, the landlord must give the tenant notice that he or she wants to evict the tenant and the tenant then gets a chance to respond to the notice. Before the landlord can file an eviction case in Court:

  1. The owner must serve the tenant with a notice of eviction.
  2. The tenant decides what he or she is going to do (correct the problem, pay unpaid rent, leave, try to get the court to let him stay).
  3. If the parties can not reach an agreement in another way, the tenant can file an eviction case in court.
All of his happens before Court. It is very important that both the landlord and the tenant follow the steps as there are strict rules and deadlines on how to give a tenant notice and how a tenant can respond. To learn more about these steps, click on the links below.

If a landlord wants a tenant to move out of the property, the landlord has to write to the tenant explaining what he or she plans to do.

The landlord must:

  • Give the tenant the type of notice that applies to the situation;
  • Follow the legal requirements and procedures;
  • Wait to see if the tenant follows the landlord's request.

There are different types of notices:

  • 3-Day Notice to Pay Rent or Quit
    This is the most common type of notice, and applies when the tenant is behind on the rent.
  • 3-Day Notice to Perform Covenants or Quit
    This type of notice is used when the tenant is breaking the lease agreement and the problem could be fixed. For example, a tenant might have a dog, even though the lease doesn't allow dogs.
  • 30-Day Notice to Quit
    If the tenant has a lease for less than one year, the landlord may use this type of notice to end a rental agreement without giving a reason.
  • 60-Day Notice to Quit
    If the tenant has been renting for more than one year, the landlord may use this type of notice to end a rental agreement without giving a reason.
  • 90-Day Notice to Quit
    If the tenant lives in subsidized housing, the landlord must give the tenant 90 days' written notice and explain the reason for ending the lease.

In some cases, the landlord may be able to use more than one type of notice.

There are a few situations where no notice is required.

If the tenant follows the request in the notice (pays the rent, gets rid of the dog, moves out, or whatever has been requested), then the landlord cannot continue with the unlawful detainer (eviction) case.

If the tenant has not followed the request in the notice by the end of the notice period, the landlord does not have to accept any rent and may file an "unlawful detainer" (eviction) complaint at court.

There are legal requirements and procedures for how the landlord is to give written notice to his or her tenant. This is called service of process. It is very important that service is done correctly or the notice will not be accepted by the court and the case will not be able to go forward.

There are three ways for the landlord to "serve" notice to the tenant:

  1. Personal service;
  2. Substitute service; or
  3. Posting and mailing.

1. Personal Service:
"Personal service" is the most commonly used method of service. This is when a copy of the landlord's notice is hand-delivered to the person he or she wants to evict.

The landlord may "serve" the notice him- or herself, ask a friend to "serve" it for him or her, or hire a professional process server. In any case, the person who serves the notice must be 18 years old or older. If the tenant refuses to take the notice, it may just be left in his or her presence (the tenant does not need to "accept" the notice).

The notice period begins the day after the tenant was given the notice.

2. Substitute Service:
If the tenant can't be found at home, or at his usual place of business, the notice may be served by:

  1. mailing a copy to the person at his or her residence, and
  2. leaving a copy with some person of "suitable age and discretion" at either the tenant's home or business. The person given the papers must be told what the papers are about and whom they are for.

The notice period begins after both of these steps have been completed.

3. Posting and Mailing:
If the landlord cannot have the tenant served personally or by substitute service, then the notice can be served by:

  1. taping or tacking a copy of the notice to the rental unit in a place that can be easily seen (such as the front door), and
  2. mailing a copy to the tenant at their rental address.

The notice period does not start until a copy of the notice has been posted and mailed.

NOTE: A 30-Day Notice may also be served by certified mail.

A landlord can give two kinds of notice to a tenant:

1. Conditional Notices:

A "conditional" notice says the tenant will be evicted if they don't do a certain thing (such as pay the rent or get rid of a pet.)

A "3-Day Notice to Pay Rent or Quit" and the "3-Day Notice to Perform Covenants or Quit" are examples of conditional notices.

If the tenant does what the landlord requests within the notice period, then the landlord cannot file an eviction case against the tenant.

After the landlord has given the tenant written notice, the landlord has to wait for the Notice period to end before doing anything else.

The landlord must let the tenant do what was requested. For example, if the landlord served a "3-Day Notice to Pay Rent or Quit," and the tenant tries to pay the rent within the 3-day period, the landlord must accept the rent.

However, once that Notice period has ended, the landlord doesn't have to accept any rent and may file an eviction (unlawful detainer) complaint with the court.

2. Non-conditional Notices:

Unless the city you live in has special rental control rules, landlords can also give tenants notice to move without having to give a reason.

If the tenant has a long term lease, the landlord must wait until the end of that time to give a non-conditional notice. Usually this is a 30-day Notice, and will say the landlord wants the tenant to move. If a tenant does not move by the end of that time, the landlord can start an eviction (unlawful detainer) case to ask the court to order the tenant to leave.

The landlord and tenant can always discuss their issues to try to reach an agreement. But, if they have not reach an agreement, the tenant did not do what was aksed, and has not moved out by the end of the notice period, then the landlord can start an eviction case in court.

Handling a court case can be difficult and confusing. For this reason, many people consider getting expert help.

For free and low-cost legal help in California:

Some other resources or options to consider include:

  • Go to a library, buy a self-help book, or look on the internet.
  • Mexican citizens living in Northern California can now get free legal help 24 hours a day
    through a hot line launched by the Bay Area's Mexican Consulates. 1-800-668-1005.