Unlawful Detainer 101

Here is a link to a site in which the Unlawful Detainer proceeding is explained to temporary Judges.

Evicting Commercial tenants

If you are a tenant who has signed a commercial lease, you need to know that you often have substantially fewer rights than residential tenants do. More importantly, the contracts you have signed, which are often what are called “triple-net leases”. give the landlord no responsibility and the tenant all the responsibility. These contracts are voluminous, detailed, and immensely powerful. A local owner of a Hofbrau at the mall off Cleveland avenue himself got involved in an unlawful detainer lawsuit, and based upon violation of the lease agreement, he was eventually evicted.

I predicted his eviction after an important adverse ruling came down from the court, and while I have no opinion one way or the other about the rightness or wrongness of the actions of the defendant or the plaintiff, I often do have an idea what the odds are in a case.

Defending an eviction by raising the issue of habitability

Many tenants erroneously believe that if the landlord is trying to evict them, and that landlord has not fixed the heater or the leaking faucet, then they don’t have to pay rent. While that is true in some instances, it isn’t always.

For example, let’s say the toilet overflows in the tenancy and you fail to fix it. The tenant absolutely has the right to refuse to pay rent. After all, who should pay rent for a place filled with human waste? If the landlord then attempts to evict you on the basis that you have failed to pay rent, and you raise that defense in your answer to the Complaint for Unlawful Detainer, then the Judge must determine what the value of the rental was, tell the landlord he cannot have possession, order that the rent be reduced to what the tenancy is worth, and award the tenant costs and attorney fees. See California Code of Civil Procedure 1174.2 and 1174.21.

The mistake that many tenants make is believing that it is always an issue at trial. It isn’t. If the landlord is evicting you based upon another reason, such as breach of your lease agreement, then habitability is not a defense. If you have five cats and your lease agreement provides that you can have one, you cannot raise the issue of habitability. You can only ask that your rent be reduced.

Evictions for landlords: Do I always need to give notice?

The answer is no. You do not always need to give notice. For example, if the tenant dies, or they are a resident employee of yours and you have released them from employment, or a fixed-term lease has expired, then no notice need be given.

In the case of the fixed-term lease, let’s say the tenant has a lease for one year and that year comes and goes. If you don’t accept rent from them after the expiration date, and you haven’t given them permission, then you can file the Unlawful Detainer suit without notice. However, leases often have provisions in them that provide for a fixed-term lease to become a month-to-month lease after the expiration date. As a general rule, when in doubt, issue notice. Or better yet, hire a lawyer who knows this area of law and don’t waste your valuable time and money.

Evictions for Landlords: when do I need a thirty-day or sixty-day notice?

Generally speaking, if there is some doubt about what kind of notice is required and the tenancy is a “periodic” tenancy (for example month-to-month), the safest way to deal with that is often to simply issue a sixty-day notice to quit. However, there are several instances where a thirty-day notice is valid. For example, if a tenant has resided in a tenancy for less than one year and the rental agreement is for a month-to-month tenancy, a thirty-day notice is valid notice. However, if the tenant has resided in the tenancy for longer than a year, then California Code of Civil Procedure 1946.1 requires a sixty-day notice.

No reason need to be given to issue such a notice. That differs from other types of notices involving failure to pay rent, breach of the lease agreement, or nuisance.

Evictions for Sonoma County landlords: the requirement of proper notice

Once you have decided that your tenant needs to go, depending upon the type of notice, you usually need to give them a reason why they are being evicted. For example, if they are not paying their rent, you can give them a “three-day notice to quit or pay rent”. This is the most common type of notice. California Code of Civil Procedure 1161 gives an overview of the requirements for a three-day notice to quit or pay rent.

The requirement of notice is the one area where landlords and even lawyers are very likely to make a mistake which can stop the eviction process. Everything flows from the notice. It’s rather like a foundation for a house. If the foundation is not solid, the house will collapse. For example, if the amount of rent requested is not exactly correct, the notice will be declared invalid and will subject your complaint for unlawful detainer (explained later) to what is called a “demurrer”. Local legal aid offices will often draft up a simple demurrer for free. If the demurrer is granted, you have to issue a new notice.

Another example of bad notice is when the landlord gives a “three day notice to quit” when rent is due. Because the landlord has not given the tenant an alternative to getting evicted, but is using nonpayment of rent as the reason, this notice would be invalid. It MUST be a “three-day notice quit or pay rent”. You must also tell them where they can pay the rent, when and to whom. If you don’t, it can be subject to a demurrer.

Evictions for Sonoma County Landlords: Should I evict them?

If you are a landlord Sonoma County or elsewhere in the State of California, and have a tenant who is not paying rent, refusing to get rid of their five cats, or bothering your other tenants, then you may want to evict them from your property. There are a number of reasons why landlords may want to evict tenants, and in some cases a landlord doesn’t even need to give a reason.

Step one: Realizing you have a problem.

Many landlords are often surprised to discover that people who appear well-mannered, decent and honest can turn out to be exactly the opposite. If after signing the written lease agreement, moving in and paying their deposit the tenant is consistently late on the rent, and then starts finding problems with the tenancy, be forewarned. A very common dynamic is for a tenant who can’t make the rent is to suddenly find problems with the wiring, the heat, or rodents. It is your responsibility as a landlord to make certain that the tenancy meets standards of habitability, enumerated in the case Green v. Superior Court. Also see California Code of Civil Procedure 1174.2. In other words, if they are complaining about something, fix it immediately. Otherwise in a case where the tenants are being evicted for failure to pay rent, the tenant can raise that as a defense.