THE LAW OFFICES OF

ANTHONY J. ROBINSON

  (626) 797-5001

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Landlords Rights:

        Basically a landlord has a right to be paid rent for the use of the unit that the landlord places on the open market. He has a responsibility to the tenants to treat them fairly and maintain the units. The problem arises when the tenant stops paying rent to the landlord or does something on the property that is contrary to the rental agreement. When that happens a landlord has the right to initiate legal action, which can ultimately lead to the eviction of the tenant. The rest of this page deals with how that process works. 

  Be Aware of the New Laws:

        In 2003 & 2004 the California Legislature has once again passed a plethora of new laws which affect your ability to operate your business.  I can hardly wait to see what they will do in 2005. Some of the new changes you may have already heard about,  like the new 60 day notice requirement for terminating certain tenancies where the tenant has been there for longer than one year.  It also includes changes to the rent control ordinances.

        There are even more changes, such as new notice requirements in order to enter the tenants apartment and how you handle security deposits. I would suggest that you read our article entitled "New Laws 2002 to 2005"  to become familiar with these changes. I would also suggest that you have your leases reviewed by a lawyer to make sure they are in compliance with these new laws. Landlords can no longer safely fly by the seat of their pants, because if they do, they risk losing their pants and their shirts.

The Eviction Process From Start to Finish:

        We are presenting you with an overview of the eviction process. We believe that it is important for the landlord to have a grasp of not only the technical process, but the reasons behind the process as well. If the landlord understand why a certain procedure must be done, they are more likely to carry it out. As a landlord, the decision to give a tenant a notice of any kind is your decision alone. However, you need to weigh that decision very carefully, because if you are wrong you could suffer consequences. 

Notice:

        A landlord initiates the process of evicting a tenant by first giving the tenant notice of why you are evicting them.  There are many reasons why you could give a tenant notice, here we will be dealing with the four most common types of notice that you as a landlord will need to be aware of. 

        You also need to be aware that in preparing and serving the notice you must be technically perfect. If you fail to comply with ALL of the requirements, your case will be dismissed and you will have to start over from the beginning. Each year the legislature is passing more and more laws which are largely consumer oriented. It is not reasonable to expect the average landlord to be aware of all of these laws, which is why we recommend that you have an attorney handle the entire process from start to finish.  If you browse through this site, you will learn of the myriad of laws governing landlord - tenant disputes. For example the 3-day notice to pay rent or quit. 

The 3 - Day Notice to Pay Rent or Quit:

        This is the notice that you will use the most. Before you can even consider giving this notice, you must establish that  the  tenant is actually behind in the rent. This can include either failing  to pay the entire rent  for a rental period, or making only a  partial payment. If this threshold requirement is met, then you can serve the 3-day notice. In preparing and serving the 3-day notice, you must completely satisfy each and every requirement of the notice or your notice is defective and you will have to start over. These requirement include:

• The landlord must name each and every occupant living in the unit. This would include any and all other occupants whether they are tenants, sub-tenants, occupants, squatters or whatever. 

• The landlord must include the property address, including the unit number and the  county where the unit is located.

• The landlord must accurately state "ONLY" the actual rent due. The notice may "NOT" include late fees, interest, special handling fees, or any other fee that the landlord may have invented. 

• As of 2002, the landlord "MUST" also include the following information:

           (1) If the agent to whom you must pay the rent is an actual person, then they must provide that person's name, address, telephone number and a list of the days and hours they are available to receive the rent;

           (2) If the agent to whom you must pay the rent is a bank, then the bank must be within 5 miles of your unit. In addition the notice must provide the name and address of the bank and the account number to which the deposit is to be made;

          (3) If the agent to whom you must pay the rent requires an electronic deposit, then they must provide the routing numbers and any other information that the entity will need to process the transaction.

        The notice must be signed, dated and served on the tenant. The landlord should also sign a proof of service and retain copies of all these documents.  

The 30 - Day Notice:

        This is the second most used notice you are likely to encounter. This notice is used to completely terminate a month to month tenancy.  Before you give this notice, you should be completely satisfied in your own mind that you no longer want this person as a tenant. You do not have to serve this notice on any particular day, although as a practical matter it is best served right after you have received and cashed the rent check for the that month. 

        Landlords must remember that once the notice is given, they cannot accept any further rent payments after the date give on the notice expires. If you do the notice will be considered waived and void. If the Tenant sends you a rent check you "MUST" return it uncashed, preferably by certified mail with a return receipt requested. 

        Since you are not required to state a reason for your decision to give the tenant to terminate the tenancy, don't give one. If you chose to disregard this advice you could be opening yourself up to a charge of discrimination or a retaliatory eviction defense. Don't do it. 

  The New 60 - Day Notice:

        This is the new one. Effective commencing January 1, 2003 and continuing on until  January 1, 2006, a landlord must provide a  periodic tenant, such as a month-to-month tenant,  with an additional 30 days notice to terminate the tenancy if the tenant has resided in the dwelling for one year or longer. This has the effect of extending the notice requirement  from 30 to 60 days on "long term tenants." Since we are now in 2006, I would suggest that you check this out before you act on it. I don't think that the governor extended the law.

         It should also be noted that this law has a "sundown" provision that allows the law to expire on January 1, 2006 unless extended by the legislature. This is a concession to the landlords so that they wouldn't raise too much fuss over this issue.

        Like all laws, there are exceptions to the 60-day notice requirement. For example,  it wouldn't apply  if the parties have entered into what is called a fixed-term lease, such as a one-year lease or rental agreement.  The reason for this is simple. The lease has its own termination date that was agreed upon by the parties at the beginning. So be careful in interpreting these types of leases on your own.  See your lawyer before you take action.

        Obviously, a 30-day notice is still sufficient for tenants who have not lived in the property for more than one year. In addition a Landlord may give a 30 day notice on sale of the rental units, provided at least "one" of the following conditions are satisfied:

        1. The owner has entered into a contract to sell the dwelling or unit to a bona fide purchaser for value;

        2. The buyer is a natural person(s);

        3. The buyer in good faith intends to live in the property for at least one year after termination of the tenancy;

        4. The termination notice is given within 120 days of opening escrow;

        5. The owner has established an escrow with a licensed escrow officer, or a licensed real estate broker; and

    6. The dwelling or unit is alienable separate from the title to any other dwelling unit.

        These requirements are hyper-technical in nature and if you do not satisfy at least one of the 6 listed requirements, then you must give the tenant the longer notice of 60 days and not 30.  So be careful. If you are not sure,  check with an attorney first otherwise, you must give the longer notice.

The 3-day Notice to Cure a Breach of Covenant:

        This is a more esoteric notice usually used to induce the tenant to conform their behavior to the requirement of their rental agreement. Examples of such breaches would include, violation of no pets clauses, subletting, carrying on a business, painting the unit another color, or even  removing the carpet without the consent of the landlord. Since these types of Notices tend to generate trips to Court, it would behoove a landlord to obtain the names and address of potential witnesses, take photographs and gather other evidence such as fliers, etc. before your give notice. 

The 3-day Notice to Abate a Nuisance:

        This is being used quite a lot in gang neighborhoods where prostitution, drug sales and gang activity is taking place. The acts that you want abated should be illegal criminal activity or activity that is harmful or annoying to the other tenants. These types of notice can be promulgated by the local police leaning on the landlords to do something. Since these types of Notices tend to generate trips to Court, it would behoove a landlord to obtain the names and address of potential witnesses, take photographs and gather other evidence such as fliers, etc. before your give notice. 

Serving the Notice:

        Notices may be served in one of the three ways listed below:

• Personal Service.  Of the three methods, this is the best method of service. It simply  means that each occupant of the premises is handed a copy of the notice. 

• Substitute Service. This service is  accomplished by leaving a copy of the notice with an individual of suitable age and discretion. To complete service another copy of the notice and proof of service is mailed to the occupants of the premises on the same day via first class mail.

• Post & Mail.  This type of service is commonly referred to as "Nail and Mail" service.  The reason for this is because the  notice is posted on the front door of the premises and another copy of the notice is mailed to the occupants of the premises  the same day via first class mail.

Filing the Summons and Complaint:

        Depending upon the individual landlord, the lawsuit will be prepared and filed anywhere from the 4th. day up to more than a week after the notice is served. It use to be that Unlawful Detainer Actions were filed in Municipal Court, however with the merger of the Municipal and Superior Court, the Municipal Court no longer exists.

        Instead you will file it in the limited jurisdiction portion of the  Superior Court's if the rent owed is less than $10,000.00 and unlimited jurisdiction if it exceed $10,000.00 and is less than $25,000.00. If the rent exceeds $25,000.00 then it is a regular Superior Court Unlawful Detainer case. The real difference is the amount of the filing fee that you will pay varies. 

        Unlawful Detainers are referred to as a Summary proceeding. This refers to rapid expedited manner way the case is handled in the Court. From the landlord's point of view this is an all or nothing proposition. If everything is properly prepared, everything should go smoothly.

        However, a small inconsequential error in the spelling of the tenant's name,  a wrong or incomplete property address, or even an omitted document can spell disaster for the landlord's case. Because of the fact that it is a Summary proceeding which can result in the tenant being evicted, they are going to scrutinize your documents very carefully, which is why they should be prepared by professional attorneys who know what they are doing. 

Service of the Pre-judgment Claim of Right to Possession:

        The landlord should be aware of the possibility of an Arrietta claim. The only way to prevent an unknown occupant from asserting an Arrietta claim just before the lock-out phase,  is to serve a Pre-judgment Claim of Right to Possession with the Summons and Complaint. Service of this form puts any and all unnamed occupants living in the residence on notice that, unless they identify themselves to the landlord, they may be evicted along with the other tenants.

        We automatically serve a Pre-judgment Claim of Right to Possession along with the Summons and Complaint. We strongly feel that the  advantages at the lock-out stage outweighs the delay caused by the 5 additional days that an unknown occupant has to respond. 

 Food for Thought for Landlords:

        In preparing this site, I visited many other legal websites and I was surprised at how partisan some of the other lawyers were towards tenants. Labeling tenants who resisted the actions of landlords as attempting to "sandbag" them. Some lawyers referred to tenants in other pejorative terms that are not professional. When I counsel landlords, I always advise them to not adopt extremely partisan and demeaning attitudes towards tenants, because it turns off the judicial officers. 

        Tenants are your bread and butter and whether you like it or not  a tenant has a legal right to resist your actions. if you have a good case, carefully prepared and professionally presented, you will prevail. Otherwise you won't. I would rather see anger constructively channeled into preparation of your case instead of bad mouthing tenants.

        I also see many lawyers talking about uncontested cases, as if almost you should expect that every case is uncontested. I'm sorry to have to inform you, but  that isn't the case at all. Now lets examine what you should expect from the defense. 

Demurrer:

        If the Complaint contains errors on its face, then the tenant's  attorney will  properly challenge the landlords right to even file this action by filing  a "Demurrer."  Basically a  Demurrer says to the Court that the Complaint is so poorly drafted that the tenant  cannot answer the allegations. If the Court sustains the Demurrer with leave to amend, then the Landlord must correct the complaint within a short period of time and reserve the tenant  by mail. 

        If the Complaint is properly prepared by a professional attorney, this should never happen. The  demurrer should be overruled.  If the Demurrer is overruled then the tenant is  the one with the short period of time in which to file and answer.

The Motion to Quash Service of the Summons:

        Sometimes  the tenant will file a Motion to Quash in which they allege that they were not  properly  served with the summons and complaint so that the court has no jurisdiction over the tenant. Landlords should be aware that most of the times these allegations are baseless. However  your attorney will still have to file an opposition to the Motion to Quash and appear at the hearing with the process server who, hopefully can  testify that the tenant was personally served. If you are using a licensed and bonded process server, like we do this should not be a problem. These people are not going to risk their jobs by throwing the papers in the yard and faking a proof of service. 

        On the other hand, some landlords will use their flaky alcoholic brother who is a recovering from something to serve the papers on the tenants. You slip him $25.00 and he will sign a paper in which he will claim to have climbed Mount Everest.  With this type of process server, you cannot be sure if he actually served the tenants or not. Most of the time the landlord wins, but not always. If the Motion is denied, then the tenant must file an answer within 5 days. If the tenant wins, you look like a liar to the "same judge that is going to hear the case on its merits later on." The judge is going to remember the motion.  So when someone tells you that a losing a Motion to Quash is no big deal because you just have to reserve the tenant with the summons and complaint, keep that fact in mind. Remember our motto, "You only get one chance to make a first impression on the judge."

Motion to Set Aside the Entry of Default:

        Even if you obtain an entry of default you are still not out of the woods. The Tenant can file a Motion under Code of Civil Procedure Section § 473 to have the court set aside your default. If this motion is granted you get to start over with the tenant filing an answer and setting the matter for trial. If you get past  each and every one of these pretrial tactic, then the tenant must file an answer. 

The Answer: 

        The Answer is the tenants  response to your  Complaint. Their  answer basically denies the allegations of the landlord, and usually includes  any Affirmative Defenses that they want to raise, and their request for relief from the Court in their prayer.

        Once the answer is filed and served on the Landlord's attorney, then we quickly file a document  called a "Memorandum to Set Case for Trial." The average Unlawful Detainer trial lasts about 15 minutes to about an hour. It is very unusual for a  Trial to last much longer in residential cases, although that is not true in commercial cases. In a few days the Court will send the parties a Notice of Trial informing everyone of the trial date. 

Day of Trial:

        The Plaintiff, usually the landlord puts on their case in chief first, when they are finished then the tenant  get to cross-examine the landlord and any witnesses they produce. Then it is the tenant's  turn to put on their case in chief. Then the landlord cross-examines the tenant  and their  witnesses. The landlord can call rebuttal witnesses and the tenant  can call sur-rebuttal witnesses. When everyone is thoroughly tired, each side will make a summation called closing arguments and the judge will make the decision. 

The Judgment:

        Assuming that you are victorious, then the clerk enters the judgment against the tenant  and in favor of the landlord. The landlord obtains a Writ of Execution or Possession which the clerk issues and the landlord take to the Sheriff's Department for Execution. A few days later the Sheriff will cause a Notice to Vacate to be served on the tenant. This means that the tenant has  five (5) days to move out. 

The Arrietta Claim:

        The landlord should always be aware of the so-called Arrietta problem. This usually rears it' ugly head when the Sheriff attempts to serve the Notice to Vacate on the named tenants and a third party hands the Sheriff a document called the Claim of Right of Possession. The basis for the defense is that the individual asserting the claim, was a tenant or occupant of the property and was not named in the complaint. 

        When the Sheriff receives this document then entire eviction process comes to a screeching halt, until this person's claim can be adjudicated in Court. The Court must set a hearing within 5 days after receipt of the claim if no rent is posted by the claimant. If the claimant posts 15 days worth of rent, then the court can set the Areietta hearing from one to two weeks later. 

        At the hearing, If the judge decides that the Arietta claim is valid, then the landlord must start the whole eviction process over again as to the claimant. This is done by serving a new 3-day notice, followed by the service of the Amended Summons and Amended Complaint. The claimant is then free to assert any or all of the responses mentioned above. On the other hand if the claim is denied, then the Eviction process continues on. 

Actual Lock-out:

        After the five days has expired, a deputy Sheriff, a representative of the landlord, and a locksmith will show up at the tenant's  door. If the tenant is  still there, be advised that they will be physically removed and escorted  off the property. The locks will be changed and a notice will be posted on the door. The tenant has been evicted. If they  try and return, they  will be arrested for trespass. 

Abandoned Personal Property:

        Once the tenant is evicted by the Sheriff, the tenant has  15 days to claim any personal property they left behind at the premises. Otherwise if the tenant left on their own, then the landlord must mail a Notice of Belief of Abandonment  to the tenant's last known address. This gives the tenant  18 days to reclaim the property. During the waiting period,  the Landlord must store the property in a safe place, either in the  unit or at a storage facility. 

        If the tenant shows up to claim the property, reasonable storage charges can be demanded, but it is usually not worth the Landlord's trouble to pursue the matter since most Landlords simply want to end all dealings with the tenant. The landlord need to clearly understand that he may not legally withhold the  tenant's property  by demanding that the tenant pay past due rent or other charges. 

        The personal property left on the property after the tenant was evicted must be removed. The tenant will have to make arrangements with the landlord to remove it. If they  don't remove it, the landlord must give the tenant  15 days' notice before they dispose of it. Be advised that the landlord can charge the tenant  the reasonable cost of moving and storage of their personal belongings. If the tenant still does not remove it and it worth more than $300.00, then  the landlord must publish a notice and  auction the property.  

        Under California law  the Landlord must to provide to the tenant with a written accounting of the tenant's security deposit within 21 days.  The Landlord can legally deduct delinquent rent, cleaning fees, necessary repairs above and beyond normal wear and tear and any other damage caused by the tenant. Any balance remaining,  must be returned to the tenant.  Be sure and check out the new laws, because there have been changes regarding security deposits.

   New Definition for Security Deposit amending (California Civil Code section 1950.5(a)):

        Effective January 1, 2003, there is a new definition for a "security deposit." A "security" used to be defined as any payment, fee, deposit or charge, including those imposed as an advance payment of rent. Under the new law, a security deposit also includes "any charges" imposed at the beginning of the tenancy to reimburse the landlord for costs associated with processing a new tenant, other than application screening fees (discussed below).

        This new definition is significant because a residential landlord may only collect a security deposit equal to two months of rent for unfurnished units, and three months of rent for furnished units. For example, for an unfurnished residential property at $800 per month under a month-to-month agreement, the maximum amount that the landlord can collect up front is $2,400, or $800 rent for the first month, plus $1,600 as a security deposit. If the landlord charges a $20 general processing fee, effective January 1, 2003, that $20 is considered as part of the $1,600 security deposit.

        A landlord cannot try to collect more than the allowable security deposit by labeling the funds as for something else, such as a move-in fee, pet fee, cleaning fee, or last month’s rent. There are, however, five exceptions to the rules limiting the amount of a security deposit:

                1. Application screening fees for actual, out-of-pocket costs for obtaining information about a rental application, such as credit reports and reference checks. However, the screening fee cannot exceed $30 per applicant, plus annual CPI-adjustments after January 1, 1998.

                2. Advance payments of not less than six months of rent for residential leases with a term of six months or more.

                3. Separate fee agreements between the landlord and tenant for structural, decorative, furnishing, or other similar alterations, but not for cleaning or repairs.

                4. For waterbeds, an additional one-half of one month’s rent as a security deposit, plus a reasonable administrative fee.

                5. These security deposit limitations do not apply to commercial properties.

 New Cleanliness Standard amending California Civil Code section 1950.5(b)(3):

        For all tenancies beginning after January 1, 2003, a landlord incurring costs to clean the premises after a tenant moves out, may only deduct from the security deposit the cleaning cost "necessary to return the unit to the same level of cleanliness it was in at inception of the tenancy." For tenancies that began January 1, 2003 or earlier, the cleaning standard is more generally stated; that is, the landlord can deduct from the security deposit "the cleaning of the premises upon termination of the tenancy."

 Bad Faith Claims of Security Deposits amending California Civil Code section 1950.5(l):

        Under the previous law, a landlord who acted in bad faith in claiming or retaining a security deposit was subject to statutory damages up to $600, plus actual damages. Effective January 1, 2003, this statutory penalty will be changed from $600 to twice the amount of the security deposit, plus actual damages. A court may impose a statutory penalty against the landlord, even if the injured party does not specifically request such relief. The landlord bears the burden of proving the reasonableness of the amount of security deposit claimed. 

        In addition to the new penalty, the tenant can also sue you for actual damages, attorneys fees and costs.  A word to the wise, those landlords who liked to pad their bills in calculating refunds of security deposits may feel the sting of the Court if you continue to engage in such practices.

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                                                        Send mail to AJR@ANTHONYJROBINSON.COM with questions or comments about this web site. Copyright © 2002-2005 Law Offices of Anthony J. Robinson.  Any unauthorized duplication or reproduction of any and all contents are in violation of all applicable laws.  Last modified: February 10, 2010 Version 2.00