UNLAWFUL DETAINER INFORMATION

Unlawful Detainer Information

Due to the marketplace, the Unlawful Detainer process has become a regular part of the real estate market and our business, whether we are representing Investors who purchase at Trustee Sale, and/or Landlords who need to evict Tenants for non-payment.  Many people call our office regarding these services, but are not in the position to pay for legal counsel to process a formal Unlawful Detainer.  We believe having legal counsel in this process and very valuable and beneficial, but do understand the financial restraints on certain individuals in our current economic client.  There are Self Help avenues, and one good web link to Help the Pro Per (A term derived from the Latin "in propria persona," meaning "for one's self") Landlord can be found at:

http://www.courts.ca.gov/selfhelp-housing.htm

How does the landlord start the unlawful detainer case?

The Landlord has to fill out a compilation of Judicial Council Forms, with the main ones shown Below:  (Also, remember Proof of Service is an essential component to all UD matters, and needs to be properly completed.)

Here is a website with Available Forms if you want to tackle the matter yourself:

http://www.courtinfo.ca.gov/selfhelp/other/landtenudforms.htm

What kind of notice does the landlord have to give the tenant?

Notices are very difficult, and it's not easy to explain what kind of notice a landlord has to give in each case. Landlords should talk to a lawyer to make sure they are using the right notice, and that they are filling it out right. Notices are not court forms, so a landlord has to write it up. If there are mistakes in the notice, the landlord might lose the case automatically.

There are different types of notices.

3-Day Notice to Pay Rent or Quit

Landlords can use this notice when the tenant is behind on the rent. The notice must:

  • Be in writing,
  • Say the full name of the tenant or tenants,
  • Say the address the notice is about,
  • Say exactly how much rent the tenant owes* (the notice can't go back more than 1 year, even if the tenant owes back rent for a longer time),
  • Have the dates the overdue rent is for,
  • Say that this rent must be paid in full within 3 days of receiving this notice or the tenant must move out,
  • Say the days and times the tenant can pay the rent s/he owes, and the address s/he can pay it at,
  • If the tenant can pay the back rent by mail, give the address the tenant should send the money to, and
  • Have the landlord's signature and the date of the notice.

* The notice must NOT include other money the tenant owes, like late fees, interest, utilities, or damages.

3-Day Notice to Perform Covenants or Quit

Landlords can use this kind of notice if the tenant is breaking the lease or rental agreement and the problem can be fixed. For example, if the tenant is subletting the unit, not keeping the unit clean or some other violation of the agreement, the notice must ask the tenant to correct the violation within 3 days or move out.
The notice must:

  • Be in writing
  • Say the full name of the tenant or tenants,
  • Have the address the notice is about,
  • Say what the tenant did to break the lease,
  • Say the tenant has the chance to fix the problem or move out in 3 days, and
  • Have the landlord's signature and date of the notice.

3-Day Notice to Quit

This kind of notice is used if there have been ongoing problems with the tenant who:

  • Causes or allows a "nuisance" on the property,
  • Uses the property to do something illegal (like sell drugs),
  • Threatens the health and safety of other tenants or the general public, or
  • Commits waste that lowers the value of the property significantly.

The notice must:

  • Be in writing,
  • Say the full name of the tenant or tenants,
  • Have the address the notice is about,
  • Say everything that the tenant did to break the lease or deserve a 3 day notice to leave, and include details and dates,
  • Say clearly that the tenant has to move out as soon as the 3 days are up, and
  • Have the landlord's signature and date of the notice.

30-Day or 60-Day Notice to Quit

A landlord can use a 30 day-notice to end a month-to-month tenancy if the tenant has been renting for less than a year. A landlord should use a 60-day notice if the tenant has been renting for more than one year and the landlord wants the tenant to move out.

The notice must:

  • Be in writing,
  • Say the full name of the tenant or tenants,
  • Have the address the notice is about,
  • Say that the month-to-month tenancy will end in 30 days if the landlord is giving a 30-day notice or in 60 days if s/he is giving a 60-day notice, and
  • Have the landlord's signature and date of the notice.

In rent-controlled cities, a landlord cannot cancel a month-to-month tenancy for just any reason. The landlord must find out if the unit is in a rent-controlled city, and if so, whether the landlord has the right to evict the tenant.

90-Day Notice to Quit

A landlord must use this kind of notice if the tenant is in subsidized housing (Section 8). The landlord must explain why she or he is asking the tenant to move out, and the landlord must have good reasons ("just cause") to ask the tenant to leave.

Please also note if you are an Investor or Bank attempting to evict after Foreclosure Proceeding, you will also need to deal with the following enacted Federal Legislation: The Helping Families Save Their Homes Act of 2009 signed into law on May 20th, 2009 (Pub. L. 111–22) provides a 90-day notice requirement and additional protections for tenants in foreclosed properties. (Title VII, Protecting Tenants at Foreclosure Act of 2009).

I will address these issues in more detail in another blog this week.

 

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0 comments • David Rendall • November 08 2011 03:18PM