THE UNLAWFUL DETAINER/EVICTION PROCESS FOR DUMMIES
In California, a landlord may be able to evict a tenant if the tenant fails to pay rent, breaks the lease or rental agreement in a material way, damages the property, becomes a nuisance by disturbing tenants, or by doing something illegal on the premises or for a host of other reasons.
If you apartment is under Rent Control, as many apartments in Santa Monica are, or under Section 8 Housing special legal rules apply to you as a tenant whereby you are provided with further safeguards against eviction.
The landlord must follow the proper procedures to evict tenant
It is against the law for a landlord to simply “throw” you out of your apartment. They must follow a series of sequential steps, in the proper order, to lawfully evict the tenant.
First, the landlord must give you a 3 notice to “pay rent or quit”. This notice can be “nailed” and “mailed” to you, therefore it does not need to be served upon you personally. The purpose of the 3 day notice is to give the tenant notice of the problem that the landlord wants fixed, and to give the tenant time (albeit 3 days) to remedy the problem which usually means they want their rent money. The landlord can only evict the tenant if the tenant fails to do what the notice requires. On the other hand, if the notice is not “correctable,” such is the case if you were served with a 30-day or 60-day notice to vacate in a month-to-month tenancy, the landlord can file an unlawful detainer case in court when the timeframe provided in the notice expires.
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 of the rental property;
- Say exactly how much rent the tenant owes* (the notice can not go back more than 1 year, even if the tenant owes back rent for a longer time, and cannot include any amount other than back rent);
- 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 name, address and phone number of the person the rent should be paid to;
- Say the days and times the tenant can pay the rent he or she owes, and the address he or she can pay it at; and
- If the tenant can pay the back rent by mail, give the address the tenant should send the money to.
* The notice must NOT include other money the tenant owes, like late fees, interest, utilities, or damages.
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 1 year or more 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 of the rental property; and
- 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 he or she is giving a 60-day 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.
How to give notice
The landlord has to serve the notice on you and other tenants properly. The landlord can do it himself or herself, or he or she can ask a friend to do it. The landlord can also hire a process server. The person who serves the notice must be at least 18 years old.
There are 3 ways for the landlord to serve you with the notice:
- Personal service: The landlord or someone else gives the notice directly to you, in person.
- Substituted service: If you are not home or at work, the landlord can leave the notice with a competent member of the household where you live or someone in charge where you work AND then mail a second copy to you at the address where the papers were left.
- Posting and mailing ("nail and mail") service: If there is no one home to leave the papers with, the landlord can tape or nail the notice to the front door or somewhere where it can be seen easily, AND send a copy by mail to you at the property.
When notice is not required
A notice is almost always needed before filing an unlawful detainer case. But there are a few exceptions:
- Fixed term leases: If you have a lease for a fixed period of time, and the lease is up and the landlord does not extend it, the landlord can file an unlawful detainer case without giving notice first. But the landlord cannot take any rent after the lease runs out or he or she will be creating a new month-to-month tenancy.*
- The landlord accepts your notice to end the lease: If you give the landlord notice that you will be moving out, but you do not, then the landlord can file an unlawful detainer case right away.
- You work for the landlord and live on the property as part of the job: The landlord can file an unlawful detainer case without notice as soon as you do not work for the landlord anymore.
* In a rent-controlled city, the landlord may not be able to evict a tenant when the lease is up unless the landlord has a good reason ("just cause") to file an eviction case. The landlord will probably need a notice in that case.
After getting notice
In general, once a landlord gives you notice, you can:
- Do what the notice asks within the time allowed,
- Not do what the notice asks, or
- Try to reach an agreement with the landlord.
If you do not do what the notice asks, the landlord can file an unlawful detainer case in court to evict you and collect back rent. If you do what the notice requires (like pay the back rent in full), then the landlord cannot file an unlawful detainer case. If he or she does anyway, you can successfully defend yourself against it.
If the landlord does not wait until the notice period runs out to file the eviction case in court, you can ask the court to dismiss the case.
To count the days in the notice period:
- The first day is the day after the notice is served.
- Then count every day on the calendar, including weekends and holidays.
- If the last day of the notice period falls on a holiday or weekend, then the notice period ends the next work day.
If the landlord does not serve the notice in person and has to mail a second copy, the notice period starts running the day after he or she mails the notice.
What is an Unlawful Detainer
Unlawful Detainer is the legalese term for “eviction.” After the tenant is served with the “notice,” whether it be a 3, 30, or 60 day notice in a month-to-month tenancy, the landlord must file and serve the unlawful detainer “summons and complaint” on the tenant. This usually happens after the 3, 30, or 60 days provided in the notice. It is very important that you take action within 5 (or in some cases 15 days) after you are “served” with the “summons and complaint.” You must file an “Answer” with the court in which you are being sued within 5 days or else you will be locked out of your apartment by the sheriff within a week, you will have a default judgment enteredagainst you for the entire amount of money the landlord is claiming you owe, your credit will be damaged and therefore you will have a very difficult time finding a new landlord who would be willing to rent an apartment to you.
1. Getting served
Once the landlord files the unlawful detainer case in court, he or she has to serve the tenant in one of these 3 ways:
The server gives the tenant the papers in person. If the tenant will not take the papers, the server can tell the tenant that he or she is being served and leave them as close to the tenant as possible.
If the tenant is not at home or work when the server comes, the server can give the court papers to a competent member of the household where the tenant lives or to someone in charge where the tenant works. The server must also mail a copy of the Summons and Complaint to the tenant at the address where the papers were left.
The landlord cannot use this type of service until the server tries at least 2 or 3 times, on different days and different times of the day, to serve the tenant in person. This is called "due diligence."
The server will have to fill out a form that says what days and times he or she tried to serve the tenant in person and that he or she exercised "due diligence." Service is considered complete on the 10th day after mailing the papers to the tenant.
Posting and Mailing
The landlord can only use this type of service if the court gives him or her permission. To ask the court, the server must first try to serve the tenant in person and by substituted service, and write a declaration for the court explaining that they were not successful.
If the judge lets the landlord serve by posting and mailing, the server has to post a copy of the Summons and Complaint on the property where the tenant will see it and send another copy by certified mail to the tenant at the tenant's last known address. Service is considered complete on the 10th day after mailing the papers to the tenant.
2. Deciding whether to file a response
After you are served with the Summons and Complaint, if you want to defend yourself in the case, you have to file a response to the lawsuit with the court. The response has to be in the proper legal form. It is not enough to call or write a letter to the landlord. It is also not enough to write a letter to the court. AND you have to file your response within the deadline.
To figure out how much time you have to respond:
- If you were served in person, you have 5 days to respond. Weekends are counted (holidays are not), but the 5th day must be a work day. So if the 5 days run out on a Saturday or Sunday, the tenant has until the end of the day on Monday (or Tuesday, if Monday is a holiday) to file a response.
- If you were served by substituted service or "post and mail," you have 15 days after the date the server mailed the court papers to file a response. The date of mailing is the postmark date.
If you miss the deadline to respond, you may still be able to file a response. If the landlord has not yet filed his or her “request to enter default” saying that you have not answered and asking the court to cut off your time to respond, you can still file your response. But do it right away because you do not know when the landlord will ask for the default.
If there is more than 1 tenant in the case, each tenant who wants to present a defense needs to answer. If they want, tenants can share an answer form. But each tenant must sign the form and pay a separate filing fee.
If you decide to file a response
There are different ways to respond. Most tenants respond by filing an Answer- Unlawful Detainer (Form UD-105 | video instructions ). But if you believe the landlord's eviction notice, the Complaint, or service of the Complaint is defective, you may file a motion such as a motion to quash (void) service or a demurrer challenging the notice or the Complaint.
A motion to quash service is filed when the tenant says that the landlord did not serve the Summons and Complaint properly. If the tenant wins, the landlord has to re-serve the Summons and Complaint. If the landlord wins, the tenant will have to answer the Complaint promptly.
A demurrer is filed when the tenant says that the landlord did not have enough in the eviction notice or in the Complaint to justify an eviction. Demurrers can delay the case by a few weeks, and if the tenant wins, the landlord may have to start the case all over.
Talk to a lawyer or find a legal aid office to help you make sure you file whatever response is best in your situation. Click for more help finding a lawyer. You can also hire your own lawyer to review your papers or to get legal advice with just the parts of it that you may need more help with (called “limited scope representation” or “unbundling”). Click to learn more about “limited scope representation.”
If you do not file a response
If you do not file a response within 5 days, the landlord can evict you without you having a say in the case. This can affect your ability to rent in the future because you will have an eviction on your record. And if the landlord says you owe money for back rent and you do not answer, the landlord may be able to take that money from your paycheck or bank account. An eviction can also affect your credit record.
Even if you decide you are going to leave the rental unit and not fight the eviction, it is a good idea to file a response. If you do not and the landlord wins the case, it may be more difficult for you to rent another place later because the judgment goes on your record.
Also, it is possible that the landlord may not dismiss the case even if you paid the rent and leave the unit clean. (It is a good idea for you to keep records of the rent paid and take photos so you have proof that you left the apartment clean.)
3. Filling out the answer
If you decide to file an answer, you can use a form called Answer-Unlawful Detainer (Form UD-105 | video instructions ). You can use the Answer to respond to each point the landlord lists in the Summons and Complaint.
It is really important that you fill out the Answer correctly. Talk to a lawyer or legal aid office for advice on what to say and how to say it. There are many cities with legal aid clinics that specifically help tenants with evictions. Click for help finding a lawyer.
To make sure you fill out the Answer fully:
Read the Complaint carefully and make sure that you say in the Answer if there is anything you do not agree with or there are things that are not true.
There are many different things you can say in the Answer, directly in response to the landlord's Complaint or to explain why you did what you did. Include everything in your defense that you may want to tell the judge, with details and dates.
For example, if you do not agree you owe as much rent as the landlord claims, say so and explain why you do not owe that amount. If the property is in really bad condition with rats or other pests, say so and explain if you asked the landlord to fix the problem, when you asked, and what the landlord did or did not do. If the unit needs a lot of repairs, say so. If you think the landlord is retaliating against you for something you did (like complain about things that need fixing), explain why.
4. Filing and serving your Answer
After you fill out your Answer, you must file it with the court and serve the landlord with a copy before your deadline to respond runs out.
If your court’s self-help center helps with unlawful detainer cases, take your paperwork to them to review. They can make sure you filled everything out properly before you move ahead with your case.
The next steps are:
Make 2 copies of the forms.
Have someone 18 or older (NOT you or another tenant), mail 1 of the copies to the landlord or to the landlord's lawyer (do NOT mail the original).
Have this person (called the "server") fill out and sign a Proof of Service - Civil (Form POS-040).
File the original of the Answer and the remaining copy, as well as the completed Proof of Service at the clerk’s office in the courthouse.
You will have to pay a filing fee. If you cannot afford a filing fee, you can ask for a fee waiver. If the court approves your fee waiver request, you will not have to pay the fees. But if you win your lawsuit and collect money, the court may ask you to pay back the waived fees.
The clerk will stamp your copy of the Answer and return it to you, and will keep the original for the court.
5. Before the trial
After you file your Answer, the landlord will probably file the Request to Set Case for Trial-Unlawful Detainer. About a week after that, the court clerk will mail the landlord and the tenant information with the exact date, time and location of the trial. The trial will take place within 20 days of when the landlord files the Request to Set Case for Trial.
If you do not agree with the information in the landlord's Request to Set Case for Trial, you can also file and serve the landlord with a Counter-Request (Form UD-150).
Deciding on a jury trial
Both you and the landlord have a right to a jury trial. Talk to a lawyer about whether you should ask for a jury trial.
The side that wants the jury trial will have to give the court $150 for jury fees. If you do not have enough money, ask the clerk about a fee waiver.
If you want to have a jury trial and the landlord did not ask for one, you have to file and serve the landlord with a Counter-Request to the Request to Set Case for Trial (Form UD-150) or file a Demand for a Jury Trial (this is not a form so you have to write it up on pleading paper).
The procedures in your local courthouse may be different when there is a jury trial, so make sure you know what the next step is. In some counties, there is a mandatory settlement meeting before a jury trial. Also, with a jury trial, you may need other forms like jury instructions, and jury questions. Ask legal aid, self-help center, or your local law library for samples of these documents. Click for more help finding a lawyer.
6. Prepare for trial
Get all the information related to your case. If possible take your original documents, plus 3 copies of everything you take to court. This may include papers like:
The lease or rental agreement;
The notice you were served with;
Letters you wrote or received about the rental unit;
Photos that show damage to the unit, if applicable;
Photos that show unsafe or unhealthy conditions, if applicable; and
Building inspection reports, if applicable.
You may also bring witnesses who have personal knowledge of the facts. If a witness is important for you to prove your case, it is best to get a subpoena issued and served on the witness to make sure he or she comes to court. Even if the witness is willing to come to court, sometimes his or her work requires that a subpoena be served on the employee to allow time off to come to court. Also, if some emergency prevents the witness from showing up in court, you may be able to get the trial continued if the witness was subpoenaed, but a continuance will generally not be granted if the witness was not. Only a lawyer or the court clerk can issue subpoenas, so get a pre-issued subpoena from the court if you do not have a lawyer.
Remember that if you do not speak English well, you need to bring an adult who can interpret for you. Or hire your own interpreter. Most courts do not provide interpreters for unlawful detainer cases.
If you are deaf or hard of hearing, ask the court for a sign language interpreter. Courts must provide sign language interpreters, but it is important to request one at least 5 days in advance of the hearing, preferably as soon as you know your trial date. You can request a sign language interpreter with a Request for Accommodations by People with Disabilities and Response (Form MC-410 | video instructions ).
7. The trial
The unlawful detainer trial will be at the courthouse. A judge or a commissioner will hear the case. There may be a jury if either side asked for one andposted the jury fees or was able to get them waived with a fee waiver.
Listen carefully to what the judge says.
8. After the trial
If you win
The judge or jury may decide you have the legal right to stay in the property. If so, the judge or jury may order the landlord to pay your costs, like filing fees and attorney fees (if this is in the rental agreement). The judge may also decide how much rent you have to pay.
If the landlord wins
If the judge or jury decides the landlord has the right to evict you, the judge will give the landlord a Judgment of Possession. The judge or jury may also order you to pay back rent, damages, and costs, like filing fees and attorney fees (if this is in the rental agreement). The landlord may also be able to get money for the rent that he or she could have gotten for the rental unit while you were there illegally. If the court finds that you only stayed in the unit to be mean, spiteful, or to make the landlord suffer, the court may order you to pay a penalty of up to $600.
The court will give the landlord a Judgment of Possession (Form UD-110). This gives the landlord possession of the property.
Then, the landlord must fill out have the court clerk issue a Writ of Execution (Form EJ-130) and take the writ to the sheriff. This lets the heriff remove and lock you out of the property. The sheriff will serve you with a notice to vacate the property. This gives you 5 days to move. If you do not move, the sheriff will remove you from the rental unit and lock you out.
9. Post judgment filings
The side that loses can appeal or can file a motion to set aside (cancel) the judge's order. There are strict deadlines to do this, and the side appealing needs a legally valid reason to do it. If you appeal or try to cancel the judge’s order, the eviction is NOT stopped. The only way for you to stop or delay the eviction is to ask for a stay of execution. Even if you do not appeal, you may want more time to move out. If the landlord will not agree to it, you will also have to file a Request for a Stay of Eviction.
Stays of Execution
You have to file the stay as soon as you get a notice from the sheriff giving you 5 days to leave the unit. A stay will delay the eviction. If the judge lets you remain in the rental unit longer, you will have to pay the rent for that period of time. The amount of time you can stay will depend on the county and the case. You need a good reason to ask for more time. And there are no court forms to ask for a stay, so talk to a lawyer for help.
Remember, you must act very quickly or you will not be able to delay the eviction.
THE WARRANTY OF HABITABILITY
The Warranty of Habitability in Californian residential leases to be in a “habitable” condition, meaning that the rentals fit for people to live inland that it substantially complies with state and local building and health codes. Repairs and regular maintenance work are a part of the warranty of habitability to ensure that the rental property is “livable.” However, repairs could be the responsibility of the landlord OR tenant, depending on the lease agreement. Under California law, landlords and tenants are each responsible for certain repairs,but ultimately landlords are responsible for ensuring that the rental property is habitable according to law.
- Landlords are legally responsible for repairing conditions that seriously affect habitability. Specifically, the landlord must repair substantial defects in the rental property and other violations of state and local building and health codes. However, landlords are not responsible for repairing damages caused by the tenant or the tenant’s family,guests, or pets.
- Tenants are required by law to take reasonable care of their rental properties, including common areas such as hallways and outside areas.Tenants must keep those areas clean and undamaged. Tenants are also responsible for repair of all damage that results from their neglect or abuse, and for repair of damage caused by anyone that they are responsible for,such as family, guests, or pets.
Examples of conditions that are necessary for a rental property to be habitable:
- Proper waterproofing and weather protection(of the roof and exterior walls)
- Plumbing facilities in good working condition
- Hot and cold running water
- Connection to a sewage disposal system
- A working toilet, sink, and bathtub/shower (must be in a room that is ventilated and allows privacy)
- A kitchen with a sink (not made of an absorbent material such as wood)
- Heating sources and gas facilities in good working condition
- Electricity system, such as lighting and wiring, in good working condition
- Clean, sanitary, and well-lit building and grounds
- Adequate trash receptacles in good condition
- Floors, stairways, and railings in good condition
- Property free of infestation of insects, rodents, and vermin (including bed bugs)
- A rental property that is free of lead paint and mold that may affect the livability of the unit or the health and safety of the tenants
- Natural lighting in every room through windows or skylights. Windows in each room must be able to open at least halfway,
- Safe fire or emergency exits leading to a street or hallway. Stairs, hallways, and exits must be kept litter-free.
- Working smoke detectors in all units of multi-unit buildings. Apartment complexes must also have smoke detectors in common areas.
- Working locks on the main entry door of rental, and a working locker security device on the windows.
- A locking mailbox for each rental property consistent with the United States Postal Service standards.
Tenants must do all of the following
- Keep the premises “as clean and sanitary as the condition of the premises permits.”
- Use and operate gas, electrical, and plumbing fixtures properly
- Dispose of trash and garbage in a clean and sanitary manner.
- Not destroy, damage, or deface the premises,or allow anyone else to do so.
- Not remove any part of the structure, dwelling unit, facilities, equipment, or appurtenances,or allow anyone else to do so.
- Use the premises as a place to live, and use the rooms for their intended purposes. For example, the bedroom must be used as a bedroom, and not as a kitchen.148
- Notify the landlord when dead bolt locks and window locks or security devices don’t operate properly
How To Properly Terminate a Month-to-Month Lease
If the lease agreement has ended, or if the rental is month-to-month, either the landlord or the tenant could end the tenancy by giving the other a 30-day advance written notice. The time for the notice varies depending on how often rent is paid. For example, if rent is due every week, only a 7-day advance written notice is needed. However, for the landlord terminate a rental that a tenant has been living in for over a year, the required notice is 60-days.On the other hand, if the lease agreement specifies a different amount of notice (not 30 days), the tenant must give the landlord notice according to what the lease says.
When a tenant intends to move out and gives a written 30 days notice, he/she should:
- Date the notice
- State the date that he/she is intending on moving out
- State the mailing address he/she you want the security deposit sent to
- Request an initial inspection of the rental property
- Sign the notice and keep a copy
- Personally give the notice to the landlord or property manager, or alternatively send it by certified or registered mail with return receipt requested.
Discrimination, Harassment, and Retaliation
Housing and Rental Discrimination
Under the California Fair Housing and Employment Act (FEHA), it is unlawful for a landlord, or property manager,to harass and discriminate against a tenant on the basis of:
- Race / Color
- Sex (including gender, pregnancy, and childbirth)
- Sexual Orientation
- Marita lStatus
- National Origin / Ancestry
- Familial Status
- Source of Income
- Disability (physical, mental, and other medical conditions)
Under FEHA, examples of rental and housing discrimination are:
- Refusing to sell, rent, or lease housing
- Representing that a housing is unavailable for rental, sale, or inspection (when it is available)
- Any other denial or withholding of housing accommodations
- Providing inferior terms, conditions, privileges, facilities, or services in connection with housing
- Harassment in connection to housing
- Providing segregated or separated housing
- Refusing to allow reasonable modifications of a rental property to a disabled person (at the expense of the disabled person), if the modifications are necessary for full enjoyment of the property
Similar to employment discrimination, in order to prove housing discrimination, the tenant (plaintiff) must prove the following:
- That the tenant was a member of a protected group (race, religion, sex, age, disability, etc.)
- That the landlord used adverse conduct against the tenant (such as refusal to rent, providing inferior terms and facilities, etc.)
- That the discrimination was intentional or that it had a discriminatory effect
- That there was a causal connection between protected group status (no. 1) and the landlord’s adverse rental practice (no. 2)
Tenants that have been subject to such unlawful discrimination may be entitled to money compensation for:
- Recovery of out-of-pocket losses
- Damages for emotional distress
- Civil penalties or punitive damages
- Attorney’s fees
Housing Retaliation and Retaliatory Evictions
It is illegal in California to harass, evict, or discriminate against a tenant in retaliation for the tenant exercising his/her legal rights. For example, opposing unlawful housing practices, calling the police regarding housing violations, and testifying or assisting in any FEHA proceeding are all tenants’ legal rights. Accordingly, landlords may not retaliate and punish tenants by evicting them, raising their rent, reducing services, and other retaliatory acts. When the landlord acts in a way that forces the tenant to move out, by violating the lease so that the rental property is no longer fit for living/business, that is a constructive eviction and the landlord may also be held liable. The law assumes that the landlord acted in retaliation if the landlord seeks to evict the tenant (or takes other retaliatory action) within 6 months after the tenant has exercised any of the following tenant rights:
- Using the repair and deduct remedy, or telling the landlord that the tenant is intending on using that remedy
- Complaining about the condition of the rental property to the landlord, or to a public agency
- Filing a lawsuit against the landlord because of the rental property’s condition
- Causing a public agency to inspect the rental property or to issue a citation to the landlord