What do you do when you want to evict someone from a room in your house?
It happens a lot. You occupy a house with a mortgage and invite renters into your home in order to help save money. It seems like a great idea. You have company, you get extra cash, and everybody is happy.
Yet problems may arise if, as is often the case, the tenant turns out to be difficult. Tenants occupying rooms in a house where the landlord resides have exactly the same protections as any other tenant under California law. You don’t simply put their stuff out on the street, or you could be liable for a whole pile of money.
However, there is one wonderful exception to that general rule. If the house is occupied by the landlord, and a single lodger resides there, then the landlord can give notice equal to the period rent is due. So if it’s a month-to-month rental, the landlord can give thirty days notice, and at the end of it, simply ask the Sheriff to come and remove them. Civil Code Section 1946.5
Not only can the Sheriff remove them quickly, but if they resist, the Sheriff can charge them criminally under Penal Code 602.3!
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.
