San Diego Landlords Learn The Eviction Process A To Z.

San Diego Landlords Learn The Eviction Process A To Z.

Every landlord has heard or experienced an eviction nightmare. The process is highly technical. Worse, those technicalities are strictly enforced by the court so if there is a mistake, even a small, technical one, the court will dismiss the landlords case and make the landlord start the entire process over again, including the service of a new notice. All the while, the tenant is living at the property rent-free.

The eviction process (called "unlawful detainer" in California), however, can work smoothly, quickly, and stress free if its done right. The eviction process can result in the tenant being lawfully removed from the premises in a month or so if the case goes by way of default or in about six to seven weeks if the case is contested through trial. That may seem like a long time when a landlords property is not generating any rent. However, when one considers that an ordinary, non-eviction lawsuit in California can take sixteen months or more to litigate, unlawful detainer cases, by comparison, move at light speed.

In an effort to de-mystify the unlawful detainer process, the following is a brief procedural overview of the California eviction case:

Serving Notice: Every unlawful detainer case begins with a notice. The most common notice is the 3-day notice to pay rent or quit which the landlord serves when the tenant fails to pay rent by the time specified in the lease. A 3-day notice to pay rent must be done correctly. If the notice is defective in content, the court could dismiss the landlords case and make the landlord start over.

Other common notices are the 30-day or 60-day notice to quit which are served when the landlord elects to terminate a month-to-month lease. A 30-day notice is used when the tenant has resided at the property for less than one year. A 60-day notice is used when the tenant has lived in the property for one year or more. One caveat, if you have a tenant who has lived at your property for years, consult with an attorney before terminating the tenants month-to-month lease. If you live in a jurisdiction with rent control or eviction control ordinances, special rules may apply.

A 3-day, 60-day, or 90-day notice may be required to initiate an eviction case against a tenant who remains after foreclosure. A 3-day notice is also required when the landlord seeks to evict a tenant who is not complying with other terms of the lease besides the payment of rent such as having unauthorized pets or having more people residing at the premises than the lease allows.

Filing the Lawsuit: When the period of time set forth in the notice expires-whether its 3, 30, 60, or 90-day notice-and the tenant remains, the landlord may file the eviction case. Once you file the lawsuit, it has to be served on the tenants in a manner authorized by law. After the tenant is served, he has 5 days to file an answer to the unlawful detainer complaint. If the tenant timely files an Answer, the landlord should immediately request that the case be set for trial. If the tenant fails to file an Answer, then the landlord should immediately request entry of the tenants default.

Trial: If the tenant timely files an answer and remains on the premises, then a trial will be necessary. By law, the trial must occur within 20 days of the landlords request. Should the landlord prevail, the court will give him judgment for possession of the premises plus all past due rent through the date of trial, costs, and attorneys fees if authorized by the lease agreement. Once the court gives judgment to the landlord, the process is not over. The landlord must present judgment and enforcement papers to the court and Sheriff so that an lock-out can occur.

Issuance and Service of Writ of Possession; Lock-Out: Whether by default judgment or judgment after trial, enforcement of the judgment begins with the landlord obtaining a writ of possession from the court clerk. The writ is then given to the Sheriff who enforces it. If the tenant does not move out, the Sheriff will remove the tenant and give possession to the landlord who may then enter, change the locks, and re-rent the property. After lock-out, the tenant has no rights relating to the premises and is a trespasser.

- Money Judgment: The landlords remedy in an unlawful detainer action includes a money judgment against the tenant for all rent, costs, and attorneys fees if authorized by a written lease. This money judgment can be collected just like any other judgment. Often times, the judgment is uncollectible in the near term but may be collectible later on. In other cases, collection efforts may prove beneficial right away if the tenant has assets or is working.

If the landlord knows where the tenant banks, a bank account levy may be worth a try. If the landlord knows where the tenant works, a wage garnishment should be served. Liens can also be filed and recorded which can give the landlord rights ahead of other creditors and coerce payment by hindering a tenants ability to get credit or loans. An experienced attorney can select the best collection methods.