No one ever wants to do an eviction. It seems harsh and cruel, yet it is the reality of being a landlord. Even with careful screening, sometimes you get a tenant that doesn’t work out or that doesn’t pay. Sometimes you have to evict a tenant, even if you’ve become friends. If you’re looking for how to evict a tenant or alternatives for evicting a tenant, this article is for you.
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How to evict a tenant in California
Dealing with an eviction or filing an Unlawful Detainer as it is better known can be fraught with pitfalls. Still, you can evict a problem tenant if you follow the rules and correct procedures. If you need to know how to evict a tenant in California this short primer will explain the basics in simple easy to understand terms.
With any eviction, it is strongly suggested that you get legal counsel before making any decisions. I’m not an attorney and I’m not attempting to give any legal advice. Please obtain legal advice from an attorney.
Causes for eviction
If you need to evict a tenant before their lease or rental agreement is up, you will need to have a legal reason to do so. You cannot evict someone just because you want to raise the rents or you don’t like them anymore. You’ll need a valid legal reason such as:
- Failure to pay rent
- Damage to the property
- Making too much noise and violating neighborhood nuisance ordinances
- Creating health or safety situations on your property
- Violating the rental agreement
For example, maybe your rental agreement says your tenants cannot park their cars on your lawn. If your tenants have been doing this and you have asked them stop but they don’t, it would be a violation of your rental agreement.
In California, a landlord can also file for eviction if the tenant fails to vacate a property when their lease is up and they have been given proper notice. Sometimes you may wish to completely avoid the legal process or the conflict, such as when your problem tenant is a personal friend or a family member. We’ll cover alternate solutions for this scenario later.
How long does it take to evict a tenant?
The time frame for an eviction can range from a few weeks to several months. It all depends upon the courts and how your tenant responds. If your tenant files legal objections called an “answer” to the eviction the courts will grant a hearing for the tenant. Though the courts give priority to eviction cases, they are typically scheduled for a particular day of the week and you have to wait for the next available court date. Should your tenant file for bankruptcy your eviction could take substantially longer.
How much does an eviction cost?
The costs for evicting a tenant may run between $800 and $1200 depending upon the attorney. Some Unlawful Detainer attorneys have a flat fee they charge for a basic eviction. However, it also depends upon what objections your tenant raises, if any. If you tenant files multiple objections, the time and costs to evict can be much more.
Alternatives to eviction
Try talking to your tenant first
It’s always better to try to talk to your tenant first. Consider the following script from Landlordology.com
“I realize that you’re having trouble paying your rent, and I feel for your situation. The fact is that I need someone in my rental that can pay rent, and if that’s not you, then you need to leave. Because I respect you, I wanted to give you a chance to leave on your own before I file an eviction lawsuit.”
Cash for Keys – a cheaper alternative to eviction?
Let’s be practical for a moment. If you have a problem tenant, before doing an eviction, you may want to consider just paying your tenant to move. If an eviction is going to cost you $1,000 dollars or more and take two to 3 months, doesn’t it make more sense to just offer your tenant the $1,000 plus a little to move out in two weeks? This option also known as cash for keys is typically faster and more economical in the long run.
It’s not uncommon for tenants to stop paying rent completely when given notice to vacate. If you lose 3 months rent along with the costs of eviction, wouldn’t have saved more money by giving your tenants cash for keys? True, you may be able to get a judgement from the court for your lost rents. However, have you ever tried to collect on a court judgement? I’m aware of one collection that took 6 years to collect.
I recently had a landlord call me with a property that she had been trying to remove the tenant for 3 months. Originally an attorney had suggested that she just offer her tenant cash for keys. She didn’t want to do that however because “It’s the principal of the thing”. Why would you pay your tenant to leave? Now, three months later she hasn’t collected any rent and still may have to go through an eviction. If she added up the cost of her lost rents and the costs of an eviction, she would have been better off giving her tenants cash for keys to move.
Don’t use these tactics unless you want to get in trouble
I hear landlords joke about sending Uncle Luigi over to someone’s house to scare them out. Don’t do this. All of the following are illegal in all 50 states:
- Changing the locks to lock your tenant out of the house.
- Stop paying utilities you are responsible for.
- Sending Uncle Luigi over to intimidate them.
- Moving all of your tenants belongings out of the house.
To evict a tenant legally, you must follow the laws specific to your state. Don’t give a judge any reason to question your integrity or the service you provide. Once you do, the judge may question everything you say.
If you have tried cash for keys or it just isn’t practical, then here are the 8 steps for doing an eviction in California. If you need more information read the California courts Landlord/Tenant Basics handout.
8 Steps for doing an eviction in California
Give proper notice
The first step in starting the eviction process is giving the tenant proper notice. If you haven’t given the tenant the appropriate notice and waited for the required amount of time, you will have to start your eviction process all over again.
3 day notice – This is the notification you will want to use when your tenant violates their lease agreement or fails to pay their rent. This notice give your tenant 3 days from the date they receive this notice to comply and correct the violation. This notice is also known as a “pay or quit” by many landlords.
What if you simply want your tenants to move out? If you do not have a legal reason to file a 3 day notice, then you will need one of the following notices.
30 day notice – Use this notice when your tenants’ rental agreement or lease is month to month AND your tenants have lived in the property less than one year. If your tenants move out in a timely manner, this may be all you need to take possession of your rental property.
60 day notice – If your tenants have lived in the property more than a year, then you may need to file this notice. If the rental agreement is month to month and the tenants don’t fall under one of the other notices, use this notice. This is often the case when a lease expires and automatically converts to month to month if not renewed.
90 day notice – 90 days is needed to notify a tenant if their housing payments are subsidized, such as by Section 8 or other government programs.
The above notices can be summarized simply. Less than one year then give them a 30 day notice, more than a year you must give them a 60 day notice. In the event they receive any kind of housing subsidy, then you must give them 90 day notice.
Note: With all of the notices, you must wait the full number days before you can proceed with any further action. The number of days starts the day after you give them notice.
File complaint with court clerk
Suppose your tenant fail to respond to the above notice. Next, you must file a Complaint for Unlawful Detainer with the proper court in order to proceed. This complaint is filed with the court’s clerk, and this is when your legal costs will begin.
Serve the tenants
After filing your complaint with the court, a process server or third party must serve your tenants with a copy of the complaint. The person who serves the notice must be over 18 years of age. The landlord cannot serve the complaint. They must also document to whom and how the complaint was served and properly complete and sign a proof of s. At this point, your tenant has the right to file an Answer with the courts as to why they should not be evicted. They have 5 days, including weekends, but not court holidays to file an Answer with the court. This five day period starts the day after you serve them. There are several possible reasons they can use that might give them a valid argument in court. We’ll cover those later in this article.
File proof of service with the courts
Next, you the person who served your tenants must file the Proof of Service form with the clerk. This form will need to know the information you documented in Step 2, i.e. to whom and how the service was delivered.
File Request for Entry of Default/Default Judgment
If your tenant does not file an Answer to your complaint with the courts, then you can request a default judgement in your favor. If this is the case, you can automatically jump to Step 7. However, if your tenant does file an Answer with the courts, then you will need to schedule a hearing date with the court Clerk. This will cause a hearing date to be scheduled 20 days from the date of the request.
At the hearing you will be asked to present your evidence which you should have prepared before hand. You may also need to subpoena witnesses to appear in court to help your case. Be aware, most people don’t like receiving subpoenas and you may create a unfriendly witness. During the court hearing, the judge will listen to both your arguments (the Plaintiff) and your tenants (the Defendant) arguments and typically make a ruling right away. You only get one chance to convince the judge, so be organized and prepared.
Obtain Writ of Possession
If the court rules in your favor, then you can issue a Writ of Possession by the court Clerk.
Sheriff’s Posting of Notice to Vacate
Once you have your Writ of Possession, you will need to schedule for the Sheriff to evict your tenants from the property. The Sheriff will post a Notice to Vacate the property on the property or hand deliver to the residents. The Notice to Vacate gives the tenants 5 days to remove all of their belongings and vacate the premises. Often, the Sheriff will also try to stop by prior to the end of the 5 days to see that the tenants are making progress. On the day of the eviction, the Sheriff will usually ask that the owner or their representative be present to take possession of the property.
Sometimes however, your tenants will not be moved out and will not have a place to stay. Do not be surprised if the Sheriff asks you to provide some money to put the tenant up for a few nights in a local motel. I know it doesn’t seem fair to have to pay even more money. However, you don’t want to become known as the landlord who put a single mom with two young kids out on the street either.
One last thing. The Sheriff’s services are not free either, you will have to pay fees for the Sheriff as well. In Sacramento County, the fees are $145 for the initial posting.
When can you NOT evict a tenant
There are times you cannot evict your tenant. There are also mistakes you can make that might extend your eviction process.
Retaliation. Let’s say your tenant filed a code enforcement complaint or a complaint with the Fair Housing Authority. You cannot evict your tenant for exercising any of the their legal rights. This would be considered retaliation and is not a valid reason for eviction.
You purchase a foreclosure property at an auction. If you purchased the property at a foreclosure auction, you must honor the tenants current rental agreement. You might have an argument it’s not a legitimate rental agreement if the rents are not at market value. If you are in this situation, you should consult an experienced eviction attorney who knows how the local judges are likely to rule in these matters.
Habitability. If your tenant has asked you to do repairs for habitability issues and you haven’t made the requested repairs, you cannot evict. This is a common complaint against landlords who do not maintain their properties well. If they have asked for the heater to be fixed or for a mold issue, you will not be able to evict. Be sure you maintain your rental property. If you don’t, the judge may grant your tenant the right to stay in your property at reduced rents. They may even require you to house your tenants somewhere else until you make the repairs.
Don’t be surprised if your tenants claim habitability issues as an objection to their eviction. This may be the first time they have ever mentioned a problem and come as a complete surprise to you. This is why it’s important to keep a record of your repairs and any tenant request for repairs. If you have documentation of our repairs, it may help the judge decide in your favor.
Tenant paid rent within 3 days of notice. If you issued your tenant a 3 day notice to pay their rent and they paid the rent in that time frame. If this is the case, you cannot evict them for failure to pay.
You make arrangements for partial payments. If you make arrangements for partial payment of the tenants rent, then you cannot evict your tenant unless they fail to make the remaining payment(s). Suppose you gave your tenant a 3 day notice on the 5th of the month. Then, they make arrangements with you to make a partial payment now and pay the rest on the 15th. Once you accept partial payment, you cannot evict unless they miss their next payment. If they miss their next payment on the 15th, you must file a new 3 day notice. You cannot use the 3 day notice you issued on the 5th of the month.
Protected classes. You cannot evict tenants based on any of the protected classes. This includes sexual orientation, race, religion, national origin, physical disability, the number of children or if they receive government subsidy. You are probably already familiar with this item as part of being a landlord.
Tips for evicting tenants and avoiding tenant lawsuits
Give proper notice. Giving proper notice is critical. If your notice is incorrect, identifies the wrong occupants or is the wrong type of notice, the judge will force you to start all over again. If you aren’t sure what your notice needs to say, get an eviction attorney to help you with drafting your notice.
Let your attorney do the posting. Most eviction attorney’s prefer to do their own posting of notices. They typically hire a professional process server to be sure the paperwork is properly completed. Even if you posted the notice yourself, your attorney may want to post it again using their 3rd party service. If you suspect you will need to evict your tenant, just call your eviction attorney.
Make sure you have your tenants’ security deposit. One way to really get in trouble with the judge is to not have the tenant’s security deposit when the tenant vacates. Failure to timely return the full amount of tenant’s security deposit is punishable by three times the amount the amount of the security deposit. If you thought eviction was expensive, consider failure to return a security deposit.
Document any deductions from tenants’ security deposit. There are often deductions from security deposits for damages and repairs. Make sure you document these deductions with receipts from 3rd parties or at least written estimates from 3rd parties. Using your uncle Bob’s repair service who gives you an undisclosed discount might be looked at unfavorably by the judge.
Make sure to only deduct reasonable expenses. Normal wear and tear on your property cannot be deducted. Carpets have a limited life, walls need painted periodically and fixtures lose their luster. These are all part of the cost of being a landlord and cannot be deducted from your tenants security deposit when they move out. However, your eviction costs, cleanup costs and repairs for broken windows and doors are normally deductible from the security deposit.
My little secret to cheaper evictions. This is so powerful, I hate to even tell you. I have landlords periodically call me with problem tenants who are not paying their utility bill. I’m not talking about the utilities the landlord pays per the rental agreement. I’m talking about the utilities the tenant pays per the rental agreement. Because landlords are usually responsible even if the tenant doesn’t pay the bill, these landlords pay the tenant’s utility bill.
But think about what will happen if neither the tenant nor the landlord pay the utility bill. Soon, the power or water will be shut off and the city will come in and red tag the property. When this happens, the city will have the Sheriff enforce the red tag notice and force the occupants to either move out or pay the utility bill. This process may take longer but works. Often landlords call me ready to sell their property right about this time because they don’t want to do an eviction.
What to do if your tenant is a family member
Sometimes your tenant is a family member or other relative. This makes the situation even more difficult. You know that if you evict a friend or family member, you won’t be friends much longer.
This usually occurs when a family member needs a place. Someone in the family offers them a place to rent at a discount while they get back on their feet. Soon, even the discounted rent stops being paid and the situation becomes more difficult. I’ve received numerous calls from landlords who rented their property to a grandchild or son or daughter and now don’t know what to do to get them out.
Many times, families find themselves in a position where the only solution is to sell the property. They sell their rental with their tenants or family members still living in the property. This way, the new owner becomes the bad guy and the former landlord can still look his relative in the eye at Christmas.
An easier way to evict your tenant
If you have read this far, you’re probably pretty serious about evicting your tenant. Maybe they’re a relative, a family friend, or just another tenant. Evictions, vacancies and repairs can be expensive. Maybe you’re tired of being a landlord and you’re ready to sell your rental property. If that is the case, you may want to consider selling your rental property to an investor who will buy your rental property as is and with tenants in place. You can avoid all of the hassle of an eviction, get cash out for your house and be done being a reluctant landlord.