Always serve a Prejudgment Claim of Possession with your Complaint for Unlawful Detainer

In Santa Rosa, as well as in the rest of Sonoma County, a landlord should always serve what is called a “Prejudgment Claim of Possession” on a tenant. The reason why is simple: if there are people occupying the tenancy, who are legal tenants, and who are not identified in your Complaint for Unlawful Detainer, then they can show up in court on the date of trial and object to the issuance of the Writ of Execution. In other words, they can stop your eviction cold in its tracks simply by telling the judge they never got that form.

The form is served blank and the tenant has ten days to fill it out and file it with the court. Since most of the time tenants don’t understand all the small print, they often give up their rights and end up getting evicted, even if they aren’t named in the complaint. If you are a landlord, I recommend always serving one with your complaint for Unlawful Detainer. If you are a tenant, make certain that your fellow tenants who are not named in the complaint fill it out and file it with the court. If they don’t, they will be evicted with you even though they have not been named in the complaint. Many of the unlawful detainer mills working out of county fail to serve the Prejudgment Claim, and when the trial comes, a tenant not named can show up, object, and the Judge will likely not issue the Writ of Execution. You can read the statute here.

Habitability in Sonoma County tenancies

Under California law, every landlord has a duty to provide a habitable premises. The tenancy must have hot and cold running water, be free of vermin, there cannot be holes in the wall, the roof or the windows.

The standard for habitability is not high. You cannot refuse to pay rent because the place has not been painted in a while. That doesn’t mean that you can have carpeting that is three hundred years old in the tenancy. That may be a health hazard.

Usually, habitability becomes an issue when rent is late. Suddenly the tenant finds mold, the heat stops working, the electrical system is not up to par. Some tenants will even sabotage the tenancy.

The problem for most tenant is that they raise the issue too late. If there is a problem, you report it immediately to the landlord and, if you really think it is bad, the code enforcement agency of your county.

If the landlord fails to fix it, and then evicts you, you then have a cause of action for retaliatory eviction. The presumption under California law is that an eviction is retaliatory if it happens within six months after you assert your rights. You cannot, however, stay in the tenancy and fail to pay rent and then claim habitability as an issue. You must move out and THEN sue. Many tenants claim their tenancy has problems, and then refuse to allow the landlord to enter the premises to fix it, and then refuse to move out, hoping to pressure the landlord into a settlement.

Because habitability is not raised before the eviction, Sonoma County judges just like other judges in California are often not sympathetic. If, however, it is an issue before, and it has not been repaired, then you have a valid defense to the eviction if you are a tenant, and a real problem if you are a landlord.

Section 8 evictions

If you are a landlord who has section 8 tenants and need to evict them, you will need to comply with numerous federal and state laws which are so confusing, even lawyers often cannot determine exactly what they are. Generally speaking, you can often evict a section 8 tenant for “good cause” (defined in your separate section 8 contract) after 90 days of notice. You will need to give the housing authority the same notice and you will need to make certain the notice is perfect. The most common reason for problems in evictions is the notice. Everything flows from and through it. If notice is bad, you are finished and need to start over. In Sonoma County, you can contact the local PHA (Public Housing Authority) in Santa Rosa and ask them questions. You can also find other information here.

Tenants who abandon the tenancy…and their property.

Landlords are not surprised when tenants move out without telling them-especially if they owe a lot of money. The difficulty arises when someone moves out of the tenancy, but hangs on to the keys in order to get a settlement out of the landlord. This is dirty pool but often attorneys for tenants will recommend they stay in the tenancy as long as legally permissible until they have been removed by an unlawful detainer lawsuit.

Here’s a hypothetical example: tenant moves in and stops paying rent. Two months go by and suddenly he has acquired a mold-related illness. He finds an attorney who represents him and tells him to hang on to the keys, even though he really doesn’t live there anymore. The landlord goes to the tenancy after 24 hours written notice and enters, finding the place a disaster. There is rotten garbage and it is obvious the tenant has left and has no intention of returning.

He can issue a “Notice of abandoned tenancy” to the opposing side, which is a written form which gives the other side time to respond. If they do not respond, you can file an unlawful detainer action.

The other more risky option is to just change the locks and remove the garbage. At common law, a landlord can take possession of a tenancy he reasonably believes that the tenant had no intention of returning to. If, for example, the landlord checks the place out and there is no bedding, rotting food in the refrigerator and rotting garbage, then comes three weeks later and nothing is changed, it may be seen by the judge as evidence the tenant had no intention of returning.

Or, if the tenant moved out and claimed mold-related illness, but never asked the landlord to abate or repair anything so he could return, the court could also see that as evidence.

If, however, you use the statutory procedure found in 1951.3 of the Civil Code, you are protected even if you make a “wrong guess”.

The main thing here is to be careful. You can be liable for all kinds of penalties if you just go in and change the locks, and it is a lot more complicated than it sounds. If a law library is available to you, check out “California Landlord-Tenant Practice” CEB guide, page 805 section 18.3.