| Following are questions and answers
concerning landlord and tenant law arranged in what we believe
is a logical sequence. Additional questions and answers are
added regularly, so please visit our site often. Please feel
free to make copies for non-commercial purposes. |
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How do I provide notice to my tenants to vacate?
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The process is started by serving your tenants with the appropriate written notice. It is critical that
you use the proper form. The notice must be filled out completely and must then be served correctly. There are several
possible notices that may be served upon your tenants. Following are the most common types:
1) Three day notice to pay rent or quit
2) Sixty day notice to vacate
3) Three day notice to cure breach or quit
Three Day Notice To Pay Rent Or Quit
This notice is used when the tenants are in violation of the rental agreement or lease by failing to pay the full rent when
due. All adults living on the premises must be named on the notice. The address must be complete and accurate, and the rent
demanded must be precise. Any overstatement in the amount due will make the notice invalid. Do not include late charges or NSF
charges. Only rent due is to be included on the notice.
Sixty Day Notice to Vacate
A sixty day notice is used to terminate a month to month tenancy. No reason must be given to the tenant when serving this
notice. It may be served at any time during the month and expires sixty days after service. Do not accept rent from the
tenants for any time period beyond the expiration date unless you intend to rescind the notice.
Three Day Notice to Cure Breach or Quit
This notice is used when you have a material violation of the rental agreement or lease other than nonpayment of rent. The
most common uses are when tenants violate a no pet clause or when tenants sublet or assign to another person without your
consent. Use this notice very carefully. You may be required to prove violations in court. If you lack adequate proof of the
violation, we recommend that you use the thirty day notice to vacate instead of the three day notice to cure breach or
quit.
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How do I serve a notice to my tenants?
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Once you have determined which notice is appropriate, you must serve the tenants with the completed
notice. Service of the notice may be accomplished by one of three methods:
1) Personally. Each tenant is handed one copy of the notice. Keep the
original and serve copies of the notice.
2) Service. Service by substitution is complete when a person of suitable age is given a
copy of
the notice at the residence and an additional copy is sent to the tenant’s home address by means of regular first class mail.
3) Post and Mail. This method is the least desirable but the most common type of service.
A copy
of the notice is posted on the door and a copy is mailed the same day by means of regular first class mail.
Computing the time period set forth in the notice is critical. For example, if a three day notice is served on Monday,
the three days counted would be Tuesday, Wednesday and Thursday. The tenants have through Thursday to pay the full amount or
vacate the premises. Note that the day the notice is served is excluded when counting the days. When the notice period ends on
a weekend or holiday, the tenants have through the next business day to pay.
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What should I do if my tenant has abandoned the premises?
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Sometimes it is difficult to determine whether the tenants have abandoned the premises, which makes it
difficult for the landlord to know whether or not he can lawfully take possession of the premises. In these situations, the
notice of belief of abandonment should be utilized. Before it can be used, two requirements must be met:
1) the rent must be at least fourteen days overdue, and
2) you must believe that the property has been abandoned.
If these two requirements are met, you must
complete and serve a notice of belief of abandonment. If a response is not received by the 18th day after mailing the notice,
you may retake possession.
If the tenants want to remain in the property, they must reply by the eighteenth day, by indicating that they have not
abandoned the property, and must provide an address where they can be served with a summons and complaint for unlawful
detainer. The abandonment notice can sometimes be used as an alternative, or in addition to, the eviction procedure. It does
not affect the three day notice to pay rent or quit. In certain situations, the attorney will prepare and serve both an
abandonment notice and an unlawful detainer, having the two run simultaneously. Possession is restored on the first one to
terminate.
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What is the process for an eviction or unlawful detainer suit?
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After the notice expires and the tenants fail to comply an unlawful detainer action is brought against
the tenants. The summons is a document informing the tenants/defendants that they have been sued. The complaint contains the
allegations that the law requires to entitle the landlord to regain legal possession of the premises. The prejudgment claim of
right to possession protects you against tenants who are not named in the lease. After the documents are prepared in our
office, we messenger them to the court the same or next day. After the documents are filed with the court, the
tenants/defendants must then be served with the lawsuit. |
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How is a tenant served with the legal documents for an eviction? |
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California law requires that a sheriff, process server or other disinterested third party serve the
summons, complaint and prejudgment claim of right to possession on the tenants. Tenants, aware that the rent is unpaid, will
often try to evade the process server to delay the eviction. Process servers do everything the law allows to serve the
tenants on the first day possible.
The vast majority of tenants are served within a few days. Sometimes, a tenant may seem to disappear. In those rare
cases, we are required by law to petition the court for an “order to post” the summons and complaint. Before the court allows
us to “post and mail” the summons and complaint, it must be satisfied that our process server has been diligent in attempting
to serve the tenants both at home and work. When the judge is satisfied, he or she will permit us to “post and mail” the
summons and complaint. Your tenants will have a total of fifteen days (instead of the regular five) to respond to the unlawful
detainer suit. Similarly, the tenant who has been served by substitute service has ten additional days to respond to the
summons. Thus in both order to post and substitute service cases, the time period is extended by ten days. Obviously, this
procedure leads to considerable delay. Unfortunately, in some instances, it is the only method available to serve some
tenants.
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How do I obtain a judgment against my tenant?
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Uncontested Cases
In the great majority of cases, the tenants do not respond to the complaint. After the time period for the response
has expired, we apply to the court for a default judgment. In a default case, no court appearance by you or your property
manager is required. Our office will handle the entire matter for you.
Contested Cases
Sometimes tenants will file a response to the unlawful detainer within the time period allowed by law. This gives the
tenants the right to have their day in court. Filing such a response does not mean the tenant wins, however, it does mean a
delay in regaining possession.
Once the attorney becomes aware of the answer, he or she will immediately set the matter for trial. Unlawful detainers
are entitled to preference on the court calendar and are usually set for trial within fourteen to twenty days after the answer
is filed. Including the additional days it takes to get to trial, the total time it takes to complete a contested case is
usually 35 to 45 days.
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How do I lock out the tenants?
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The eviction process concludes with the writ of execution for possession of the premises. The writ is an
order from the court to the county sheriff, giving him the power and duty to carry out the judgment. A sheriff drives to the
premises and posts a five day notice to vacate. This is the final five days that the tenants have to move out. On the sixth
day, the sheriff will meet you or your agent at the premises at a designated time. You will then receive a receipt for
possession of the premises. The premises are now back in your possession. If the tenants are still inside when the sheriff
arrives, the tenants will be physically removed from the premises.
If the tenants move and leave some personal property, you must mail a notice of abandonment of personal property to
the tenants‚ last known address and allow the tenants eighteen days to claim the property. The property must be kept in a
reasonably safe place, but does not have to be stored in the leased premises. If the property left behind is worth less than
$300 you may dispose of it after the 18 days. However, if the property exceeds $300 in fair market value, you must sell the
property through a public sale, but only after publishing the date and time of sale in a newspaper of general circulation once
a week for two consecutive weeks. If the tenants return to claim the property, you must return it to them, but you may charge
reasonable storage fees. You may not hold the property as ransom for rent even if you have a judgment. It is always prudent to
take photographs of the personal property and make an inventory.
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How do I account for the security deposit and deductions?
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If you have received a security deposit from the tenants, the law requires that you mail a statement
of the disposition of the deposit to the last known address within twenty-one days after you receive possession of the
premises. Even though the tenants owe you money, you still must account for the deposit. First, deduct for any damages
above ordinary wear and tear and cleaning expenses. The balance is applied toward any rent owed. You must provide the
statement even if 100% of the deposit is applied to damages and unpaid rent. |
| 9. |
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How do I obtain a money judgment?
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When the unlawful detainer process is complete and you have regained possession of your property, a money
judgment can be obtained. In a “skip”situation, a judgment and be obtained through small claims or municipal court, depending
on the case.
Obtaining a money judgment is a powerful tool for recovering any unpaid rent and costs. A judgment is enforceable for
10 years and can be renewed for 10 additional years.
Law firms have resources that are not available to a collection agency. For example, we can exercise the legal power
to subpoena information from otherwise private sources. This is highly effective in collecting money judgments.
Locating the Debtor's Assets and Income
After we locate the debtor’s, we assess their ability to repay the debt. Since many debtors refuse to cooperate in any
way, often it becomes necessary to determine their assets and income by other means. In addition to the skip tracing resources
at our disposal, we can use additional methods to uncover their assets and income. One of these methods is a legal process
known as the Order for Debtor Examination. We obtain a court order that requires the debtor to appear before a judge with all
of their financial information for examination. We also subpoena pertinent information from parties with whom the debtor does
business, if necessary. It is common for us to receive a cash payment at the examination and to negotiate a payment plan. If
the debtors fail to appear, the judge may issue a warrant for their arrest.
Attaching the Debtor’s Assets
For debtors who refuse to pay their debt, we can effect legal seizure of their bank accounts, real and personal
property, wages and/or business income. Since there are many exempt sources of income and exempt assets, it is crucial to know
exactly what they have and what legal process to use to attach it. When this is certain, we obtain a court order to effect
collection of the debt.
If the debtors are employed, up to 25% of their wages can be garnished. If they have a business, a sheriff can enforce
a “till tap” and remove all cash receipts from their place of business. Their non-exempt bank accounts can be levied for the
full amount of the judgment. In some cases, personal property such as automobiles, jewelry and luxury items can be identified
and attached by the sheriff’s office for judicial sale.
Another effective tool that our firm uses is the filing of an Abstract of Judgment in the county or counties where the
debtor has, is likely to have, or is likely to acquire, real property. The abstract will create a lien on the property which
must be satisfied before a sale or refinancing of the property can be accomplished.
Even if the debtor has assets or income in another state, we can collect in most states through what is known as a
“sister state judgment”. Although a somewhat lengthy process, our firm can domesticate judgments in the state and county of
the debtor’s residence or business and enforce the judgment as though it were in California.
Satisfying the Judgment
We maintain all collection files through our debt collection system. This system allows us to successfully oversee,
track, review, update, and handle all files in our collection department. Our system accurately maintains the amount owed,
calculates interest on the unpaid principal balance, adds any additional costs incurred and credits any and all payments
received. Upon receipt of the final moneys owed, our office will promptly file a satisfaction of judgment with the appropriate
court. We handle all your collection needs, from start, to completion.
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| Michael T. Chulak & Associates |
| Full Service Law Firm |
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MTCLaw.com |
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