1977 to 2011 - Our
32 nd Year in
Business
Landlord Services, Inc., and Law Offices
of Robert Anderson
A Few Sage Words For Landlords and
Managers...
“The world does not pay for what a person
knows; it pays for what the person does with that knowledge.”
Most people in the business of owning and
managing residential real estate, like a lot of other professionals, always
crave up to date and smart information in their chosen field. Times change,
new management and ownership techniques develop, new laws are passed and there
is constant drive and need for each of us to acquire that information so that;
“Knowledge becomes wisdom only when put to
practical use.”
This booklet may be the guide you always wished
you had because it shows you why success in the area of landlord-tenant law
can mean the difference between a positive or negative cash flow!
Bill Moore, CPM
President of Landlord Services, Inc.
Welcome to the world of landlords, tenants, and
the California eviction process. This guide is primarily for use by
individuals who own and manage residential rentals. Whether you own one rental
or manage thousands it is designed with you in mind. Carefully written for the
person who doesn’t want a lot of legalese, just the law ... written in plain
simple English.
(This publication is designed to provide
accurate, authoritative and practical information in regard to the subject
matter covered. It is provided with the understanding that the publisher is
not engaged in rendering legal service. If legal advice or other expert
assistance is required, the services of a competent professional person should
be sought.)
Putting "Quick” and “Eviction” in
the same sentence...
From the landlord’s perspective, “quick
eviction” is like “dry water.” Any eviction, no matter how quick, is too
long. The Landlord Services and Law Offices of Robert Anderson’s “Quick
Eviction” concept is neither a catch phrase nor an idle claim. It has
meaning: the drive to reduce the time required to restore your cash flow by
freeing the nonproductive rental unit or foreclosed property in the shortest
time permitted by law. Understanding this legal process can be difficult at
times. Even seasoned professionals have differences as to how it should be
approached. We are dedicated to demystifying the process and making it seem as
easy as replacing a hotwater heater that has gone bad. We also want you to
understand exactly what it is we do, and how we do it, and why some procedures
can be accelerated more than others. Over the past twenty-five (25) years we
have noted a pattern and from it, we have culled questions clients most often
ask about the process, and their answers. For us, the quick eviction concept
has as its conclusion not just the tenant eviction, but the client’s
satisfaction and conviction that he has received real value for the price
paid. It is with this in mind that we have prepared this pamphlet. Your case
is unique and all of your questions can't be answered here, however, we
encourage you to follow up until you are satisfied.
SUMMARY OF QUESTIONS
1. “How long will it take to evict my tenant?”
2. “I need to evict my tenant, what is my
plan of attack?”
3. “Can’t I just change the locks or cut
the tenant’s water off to get him out and avoid all this legal nonsense?”
4. “Do I have to give each and every tenant
in the unit a 3-Day Pay or Quit Notice?”
5. “I've dealt with other attorney eviction
services and most have recommended that I always serve my three day notices on
the FIFTH of the month. Do I have to do that?”
6. “How do I ‘count’ the number of days
my tenant has to comply with a 3-Day Pay or Quit Notice?”
7. “I have heard that the tenant sometimes
gets eight days to comply with the three day notice. Is that true and why?”
8. “Do I have to accept partial payments of
rent after my tenant receives the 3-Day Pay or Quit Notice?”
9. “How much does it cost to evict my tenant?”
10. “Do I need a lawyer to evict my tenant?”
11. “Who pays for all of the legal expenses,
the landlordor the tenant?”
12. “Just what is the ‘Summons and
Complaint’and ‘Unlawful Detainer’?”
13. “The 3 day notice has expired and I want
the tenant out, how do I take the next step to evict my tenant?”
14. “How do I know what my attorney eviction
service is doing, and should I call daily?”
15. “What happens if my tenant cannot be
personally served with the Summons and Complaint, or the process server can't
find the tenant?”
16. “Are there other ways to evict a tenant?
What if he makes a nuisance of himself or forces another tenant move-out, or
gets a pet?”
17. “My tenant has not paid his rent in two
months. I have started the Unlawful Detainer process, and now he is
complaining about maintenance problems around his apartment. Do I have to
correct them now?”
18. “What if my tenant or one of his guests
makes the place uninhabitable? Let’s say he breaks a window, am I still
responsible?”
19. “Should I have any contact with the
tenant once I have authorized you to start the eviction lawsuit (unlawful
detainer)?”
20. “I am in the middle of my Unlawful
Detainer action, and now the tenant wants to pay the rent he owes. Do I have
to accept the money and let him stay?”
21. “What happens if my tenant files
bankruptcy while I am evicting him?”
22. “I rented one of my houses to a tenant
under a one year lease. How do I evict him now?”
23. “What do you mean by the tenant’s ‘default’
and what is a ‘writ of possession’?”
24. “I’ve heard of ways my tenant can delay
the eviction process, what are they and how do you differ from other attorney
eviction services in eliminating or avoiding these delays?”
25. “My tenant filed an answer in response to
the Summons and Complaint and my attorney has asked for a spot on the court’s
trial calendar. Do I have to appear in court?”
27. “How long does it take to get a trial
date in a contested eviction?”
28. “How do I know when the Sheriff serves
the Five Day Notice to Vacate?”
29. “The Sheriff served the Five (5) Day
Notice, how do I know if the tenant is out?”
30. “The Sheriff has served his eviction
notice and is scheduled to meet me next week. What can my tenantdo now to
delay the eviction?”
31. “Do I have to meet with the Sheriff when
he completes the eviction?”
32. “When the Sheriff comes out to evict the
tenant, will he move the tenant's belongings out, too?”
33. “Do I have to return the tenant's
security and cleaning deposit?”
34. “How do I get the money that the tenant
owes me after he has moved out?
35. “I’ve gotten the tenant out and
obtained money judgment, but, the tenant has done a lot of damage to my
rental, whatcan I do about that?”
Here are the Most Important Questions
to Ask Regarding How to Evict Tenants Quickly...
1. “How long will it take to evict my tenant?”
We fast track our cases from the moment you
authorize us to proceed and the Complaint is filed with the court, to the time
the Sheriff turns possession of the rental unit over to the landlord. When the
tenant does not file a response with the court (an uncontested case), your
eviction can be completed in as little as 13 days. Uncontested cases account
for approximately 75-80% of all cases filed. Ask for our “Eviction Stopwatch”
and “20 Day Eviction Calendar” which will explain why 13 days is the
minimum. Normally you can count on getting your rental unit back within 13 to
27 days of filing the Complaint.
If the tenant files a response with the court
(a contested case), then the eviction will take a bit longer. We will have to
appear in court at least once, this then cannot be helped, so, it will take
between 20 to 45 days to complete the eviction. Landlord Services, Inc., and
the Law Offices of Robert Anderson work hard to cut this delay to the minimum
amount of time the crowded court calendars will permit. Experience enables us
to detect, in most cases in advance, the possible snares and pitfalls which
can cost you time. We are one of the most experienced attorney supervised
eviction services in the State of California. Our record shows that over 18
years of experience enables us to design tactics to circumvent delay, and do
the job in the minimum time allowable. No matter how smart your tenant may
think he is, the truth is that he has one case to learn from, we have had
literally over 20,000 cases that we’ve learned from so that our client, the
landlord, has the overwhelming advantage of our experience and expertise!
2. “I need to evict my tenant, what is my
plan of attack?”
Robert Anderson, Attorney
The first and most important decision you need
to make is which attorney eviction service to employ. Landlord Services is the
oldest continuously operating eviction service in San Francisco and the South
Bay with service being provided throughout the Bay Area and State of
California. Since we opened our doors on February 18, 1977, and put the quick
eviction concept to work, thousands of satisfied clients have testified to the
effectiveness of our methods. They know that we can successfully resolve all
their landlord/tenant problems and get the problem tenant out. Period. We can
resolve some problems without even filing with the court, and we pride
ourselves on this most of all. Sound legal and property management advice is
available to all clients all the time. So, your decision should rest on the
experience and demonstrated competence of whomever you employ to effect the
tenant eviction.[1]
Your first and most vital action (as opposed to
decision) in the eviction process is the proper preparation of an eviction
notice and the proper delivery of the notice to the tenant. In almost all
cases, either a three day notice to pay rent or quit, or a thirty day notice
to vacate will be served. Call and ask for our pamphlets titled "How to
Properly Prepare a Three Day Pay or Quit Notice" and "How to
Properly Serve a Three Day Pay or Quit Notice." We also have an all
inclusive package titled, “Landlord’s 3 Day Eviction Kit.” Since this is
the most critical step in perfecting your right to the return of the property,
a few minutes invested in reading and learning how to prepare and serve the
notice can pay big dividends in days or weeks saved if later it is determined
that the notice or its delivery was found to be defective. Use our faxback
service to receive these pamphlets immediately. If you are unsure about the
eviction notice process this is the time to consult with our office!
If the tenant complies with the notice, then
your problem is solved, at least to the extent that you have your rent or the
rental unit is available for rerental. If the tenant does not comply with the
notice, then you may initiate the court proceedings necessary to evict him by
telephoning or faxing to our office the necessary information and the
authorization to begin (see back page for “how to order” our service).
Bill Moore
Robert Anderson,
Attorney at Law
The most important decision is
selecting an experienced and knowledgeable attorney eviction service which not only can
provide advice on the legally correct way to effect the eviction, but also can
view the whole problem from the client perspective and devise clear and
practical ways to deal with and, if possible, avoid problems which may arise.
3. “Can’t I just change the locks or cut
the tenant’s water off to get him out and avoid all this legal nonsense?”
No! You may not do things like throw the
tenant's belongings into the street or change the locks (even if you concoct a
story about being “in the process of fixing the locks”) without providing
the tenant with a key. Nor can you remove the front door, cut off the water,
or otherwise try to improperly harass the tenant into moving. If you do, you
may incur very serious civil or even criminal liabilities, and likely be
prosecuted for them. There are plenty of attorneys around who will take such a
case because they know that a landlord has the assets to pay the judgment they
will ultimately be awarded and your liability insurance carrier will gladly
throw you to the wolves with no coverage for willful unlawful acts. Instead,
come to Landlord Services and the Law Offices of Robert Anderson. We will have
your tenant out for you for a fee that compares favorably with the cost of one
or two weeks of rent alone, and there will be no troublesome lawsuit against
you later on!
4. “Do I have to give each and every tenant
in the unit a 3-Day Pay or Quit Notice?”
No. The law requires that, of the original
tenants, or the tenants who have signed the rental agreement, only one needs
to be given the notice. If other people have moved in later, then these must
separately be given a notice. Interpretations of the rules may vary, so if you
are serving your first notice, call us to find out what the court policy is in
your judicial district (San Francisco is one such court that requires each and
every tenant be served individually).
5. “I've dealt with other attorney eviction
services and most have recommended that I always serve my three day notices on
the FIFTH of the month. Do I have to do that?”
No. Most attorneys and some eviction services
miss the mark by thinking of the law as the only rent collection tool
available. You may serve a three day notice any time after the tenant is late
in paying rent. There may be good reasons not to serve the notice at the
earliest opportunity. There are two pitfalls to look out for:
the last day of the 3 day notice must be a
business day!
1. Make sure your tenant has at least one
business day to pay the rent before the notice is served. The rule is that if
the rent is due on the first it is actually payable on the first, if it is a
business day, or the first business day thereafter, and is only late the day
after that business day. For example, let us assume your rent is due on the
first. On January first, you receive no rent. January first is a holiday, so
it would normally be due on the second. But if New Years day was a Sunday,
then the second would be a holiday as well (the Monday after a legal holiday
falling on a Sunday). This means that the rent would actually be due on
Tuesday the third. If not paid on Tuesday the third (the first business day of
the month), then you may serve your notice as early as the fourth, or
Wednesday. If your rental agreement provides for, say, a grace period expiring
on the fifth, or you customarily give your tenants till the fifth to pay the
rent, then you would use the same routine to determine the last day to pay,
only this time, you would treat your agreement as if it called for the rent to
be paid on the fifth day of each month, instead of the first -- regardless of
whether the agreement says it is due on the first.
2. Before sending out a notice, check your
records carefully and directly question, in person or by phone, the person who
actually collects your rent, to determine whether it was actually received.
Nothing can be more destructive to a mutually beneficial business relationship
with a good tenant than giving him a three day notice, or, worse, posting it
for all the other tenants in the building to see, when he has actually given
the rent to the resident manager but it got stuck in the mail slot, or not
timely given to you for some other reason not the tenant's fault. In the case
of a good, long term tenant who mysteriously fails to pay rent, you may wish
to invest in a phone call to see what the problem is. For example, if the
tenant usually pays by mail, the mail can slow up around the holidays. Good
tenant retention is always good business!
You are never obligated to serve a notice on
the tenant. In the case of a long term tenant in a temporary bind, you may
wish to work with him in the expectation that the problem will be resolved.
Just don't let him get too far behind (never let a tenant become more than one
month behind) - it’s just too difficult for any tenant to come up with “that
much money.” When you do have to serve the tenant with his notice to pay up,
it is important that you know how much time the tenant really has, this is
further discussed below.
6. “How do I ‘count’ the number of days
my tenant has to comply with a 3-Day Pay or Quit Notice?”
This is a simple and three step process:
1. Do not count the day the notice was served;
then,
2. Count the next full three (3) days (read
further in this pamphlet if you had to use the mail to effect service); and,
3. Ensure the last day or "third" day
is a business day, if not, go to the next business day for tenant compliance.
So, if you handed the notice to the tenant on a
Friday, skip that day, give the tenant all day Saturday (1), Sunday (2) and
Monday (3). If you still have not received the rent on Monday, provided Monday
is not a holiday, then the tenant has failed to comply with the notice. If
your tenant has been mailing his rent to you, then determine compliance by the
date of the postmark on the envelope (and keep the envelope as well as the
check).
7. “I have heard that the tenant sometimes
gets eight days to comply with the three day notice. Is that true and why?”
This occurs when a three day notice is served
either by substituted service or posting and mailing. In either case, the
mailing extends the time for compliance by five (5) days to eight (8) days
total. In this case, you can calculate the last day for compliance the same as
above, simply treating the notice as an eight (8) day notice to pay rent or
quit. This five (5) day extension rule does not apply to thirty (30) day
notices. You can also avoid extending the extra five days if you can prove the
date on which the tenant actually received the notice (for example, if you
actually saw the tenant removing the notice from his door, or the tenant sends
you a note acknowledging receipt). In that case, you would calculate the three
days from the date of tenant’s actual receipt.
Although this law does not apply to 30-Day Quit
Notices, and no longer applies to Sacramento and Orange Counties, always try
to personally hand the notice to the tenant or any one of the other tenants
named on the eviction notice. You will save yourself an extra five (5) days of
potential rent loss!
8. “Do I have to accept partial payments of
rent after my tenant receives the 3-Day Pay or Quit Notice?”
No. During the three day compliance period, you
need only accept full payment of the rent demanded in the notice. After the
notice period expires, you do not have to accept any rent from the tenant, but
if you do, you cannot begin an unlawful detainer proceeding without service of
a new notice, demanding the balance of rent due. Whether or not to accept a
partial payment, or full payment after the notice expires depends on how much
is due and the individual tenant's history[2]. If the tenant who owes two
months rent for a total of $2500 offers to pay $2000, you may wish to accept
this offer so as to reduce your rent loss. If you do, make sure to obtain a
definite commitment as to when (the exact date, the time, the place and form
of payment) the balance will be paid, and promptly serve a new notice if it is
not. It’s just not a good idea to make a habit of accepting partial payments
after your three day notice is served. Some judges may take the position that
you have created a course of dealing with the tenant and changed the otherwise
plain meaning of the three day notice. If you are going to cut the tenant
slack in this way, do it once and only once or any time any tenant pays late
include the following statement on the rent receipt; “Acceptance of this
payment does not constitute a waiver of landlord’s right to collect the rent
in full and on the due date as prescribed in the rental agreement.”
Successful Manager
Every successful landlord or manager knows that
once a tenant gets behind in his rent, if it is not paid up in full and in a
very short time, eviction, skip out or bigger losses loom on the horizon. A
good rule of thumb is have any rent balance paid in full within fifteen (15)
days but not later than the end of the month. Consider too, the tenant who has
been habitually late, not taking care of the rented premises, or has caused
other significant problems, that you should politely and firmly refuse to
allow that tenant to pay late or in partial payments and proceed with the
eviction process. You'll find another tenant who will be responsible.
9. “How much does it cost to evict my tenant?”
Aside from your rent loss, which we work very
hard to minimize, you will be charged fees, which constitute our compensation
for services, and what we refer to as “costs.” These are reimbursements
for payments which we make to the court clerk, process servers, Sheriff, and
others who are engaged as part of the overall service. Most attorney eviction
services charge flat fees. A few charge by the hour. We charge flat fees for
almost all uncontested, and most all contested evictions. In very rare
instances our attorney may have to charge on an hourly basis, and if so, you
would be advised in advance if this is the case.
The eviction costs represent approximately 50%
of the total amount paid in the price. These costs vary with the number of
tenants to be served and, sometimes, the judicial district in which the case
is filed. Our fee schedule contains all the information you will need to
calculate the cost of your eviction if uncontested, and can be obtained from
our office by request. Our billing statements, unlike many others, detail and
describe each and every fee, court, and sheriff cost. You won’t receive a
mere one line billing invoice stating “for professional services” from us!
10. “Do I need a lawyer to evict my tenant?”
No. You are free to file your action and handle
it yourself "in propria persona". Some landlords can do this, and
quite successfully, having acquired a knowledge of the court systems that
rivals that of most attorneys. However, we always recommend that you obtain
legal representation. Working knowledge of the requirements of procedure,
which can vary from court to court, can usually be gained only from
experience, and going to court is not ordinarily what the typical landlord
does most. When you deal with Landlord Services, unless you specify otherwise,
legal representation is automatic, by an experienced attorney whose specialty
is cutting his way through the legal nets and snares that otherwise would
consume many hours of your productive time (don’t try Small Claims Court, it
does not have the jurisdiction to evict tenants).
Electronic Court Filings
Someday, though, it may be possible for the landlord or manager to go to the
courthouse and initiate an unlawful detainer by approaching a computer screen,
touching appropriate boxes on the screen, paying the filing fee, and watching
his action being electronically filed and processed. The technology is
available now, and as the volume of cases in the court system grows, this
advance is probably inevitable. For now, however, attorney assistance is a
must for the prudent California landlord especially those who want to leave
the eviction chore to professionals.
11. “Who pays for all of the legal expenses,
the landlord or the tenant?”
Initially, each side is responsible for
compensating their own professional assistants. The landlord compensates his
own attorney eviction service according to whatever contract he has made with
them.
If you have a written rental agreement, and it
contains a clause which provides that the party who prevails in any litigation
will recover attorney fees, then, whomever is left with possession of the
rental unit at the conclusion of the case, is awarded a reimbursement for his
attorney fees in the final judgment. This is nearly always the landlord. (Some
older agreements provide that the landlord always recovers attorney fees, by
law this is treated as if it provided that the prevailing party recovers.)
GOOD FOR 10 YEARS!
There are two important factors to remember before too much enthusiasm is
generated about this possibility. First, nearly all courts have published and
follow "preapproved attorney fee schedules" which limit the amount
of attorney fees which can be recovered in the event of default or trial. In
the case of evictions, the fees in the schedule are based on a percentage or
other relationship to the amount of money awarded in the judgment, regardless
of the amount of work involved, with an arbitrary minimum in the $375 range.
This, together with your award of recoverable costs (see below) is usually
enough to cover all of your combined eviction expense, or nearly so, (most of
the time it is more). In the event it is lower it is possible to make a
separate application for additional fees, but this is rarely worth the effort.
Second, you must be prepared for the fact that your award of attorney fees,
regardless of how much it may be on paper, is only worth as much as your
tenant is. If your tenant is financially irresponsible (and this is usually
the case if he has stopped paying rent), it may be a very long time before
this award, or your past due rent, is actually collected). The judgment is
good for ten (10) years and renewable for another ten (10). We have seen cases
where a former tenant, trying to buy a car or a house, has been forced to pay
a judgment half a dozen years old or more. These judgments do usually carry a
ten (10) percent simple annual interest rate. More about collecting money at
the end of this pamphlet.
SETTLEMENT POSSIBILITIES...YOU BE THE JUDGE!
If the written contract does not contain the type of clause mentioned above,
or you have some sort of oral agreement with the tenant, then you will only be
able to recover “court costs.” You will also receive costs in addition to
your attorney fee award if you qualify to recover fees. These recoverable
costs are defined by the Code of Civil Procedure, and in the typical case are
restricted to the filing fee for the complaint, plus the process server fee to
serve it. It is possible later to recover Sheriff's eviction fees and other
miscellaneous items amounting to a total of less than $200. This is always a
separate fee for service item, and whether or not it is worthwhile to pursue
this avenue will vary on a case by case basis.
WRITTEN STIPULATION
All of the above can be varied by the parties
in the course of settlement negotiations. Sometimes you may wish to permit the
tenant to attempt to reinstate his tenancy even as late a stage as any date of
trial. Such agreements typically involve the entry of judgment against the
tenant for possession, but a proviso that if he pays all the rent plus the
actual attorney fees and out of pocket expenses (regardless of the type of
rental agreement or court attorney fee schedule) then judgment is deemed
satisfied and the rental agreement reinstated. Such an arrangement is usually
precluded by other considerations, though, however, when agreed to whether it
is by rental agreement or settlement, the tenant is ultimately responsible for
all attorney fees and court costs.
Keep in mind though, you don’t have to accept
any tenant proposed settlement.
12. “Just what is the ‘Summons and
Complaint’ and ‘Unlawful Detainer’?”
The summons and complaint is the second set of
documents which is served on the tenant in the typical case, coming after the
eviction notice expiration. The complaint is a document, prepared by our
attorney on your behalf, which, when filed with the court, makes the court
officially cognizant of the fact that you are demanding that a certain
individual be put out of your property by appropriate government officials. It
contains information, in a narrative format, about the ownership of the
property, the identity of the tenant, the location of the property, the nature
of the landlord/tenant agreement, how much rent is past due, that a notice
demanding possession of the premises or rent payment has been served, and
when, that the tenant "unlawfully detains" the premises, (hence
"unlawful detainer"), and a request that the tenant be evicted and
ordered to pay what he owes. When this is filed, the clerk issues another
document called a summons, which we also prepare. This document contains
information about who is suing whom, the location of the court, and
notification that the tenant must file a response to the complaint within five
days or he will be evicted without trial.
As a package, the two documents are generally
referred to as the "unlawful detainer." Technically, though, the
term "unlawful detainer" refers to the proceeding itself, which is
specially set up and governed by a unique set of statutes at Code of Civil
Procedure §1159 through §1179a. These sections contain special rules of
procedure and priority, which permit this sort of proceeding to be resolved in
an extremely short (for the judicial system) time.
13. “The 3 day notice has expired and I want
the tenant out, how do I take the next step to evict my tenant?”
After you telephone our office and request that
we continue with the eviction, in response to your request, we will that day
prepare and file the complaint and have the summons issued in court, and
transmit the complaint to one of our carefully selected process service firms.
The first attempt to serve will occur that evening. When the tenant's time to
respond to the complaint runs out, we will have his default entered promptly,
judgment for possession of the property entered, and a writ directing the
Sheriff to evict issued by the Clerk. Finally, we coordinate with the Sheriff
to have the final eviction notice posted and communicate directly to you the
date on which you can expect to meet the Sheriff to get possession of your
property back. After you have possession, we can obtain a “money judgment”
against the tenant on your behalf for any money he owes you. We have prepared
other brochures, pamphlets and checklists which thoroughly describe these
steps. Please call and ask for these if you need more details.
A copy of the Summons and Complaint in Unlawful
Detainer must be served or properly delivered to the tenant. Unlike the 3 day
notice, which may be served by the landlord or his agent, the summons and
complaint must be served by the eviction attorney’s process server or other
qualified third party. Please find more information on this subject in
question number 15.
14. “How do I know what my attorney eviction
service is doing, and should I call daily?”
Your case not only receives priority treatment
within the court system, evictions and collections are all we do. From the
time you instruct us to proceed with your tenant eviction, give us a couple of
days to do our job and wait for your first report to arrive by phone, mail or
fax. When you do receive a report from us, please take time to read it. We
have tried very hard to describe and explain each step of the eviction process
as it relates to your case.
As part of the Landlord Services Quick Eviction
concept, thorough written reports are mailed or faxed to our clients at each
stage of the proceeding describing progress to date and any decisions which
the client needs to make. The reports are sent to you within 24 hours of your
initial contact with our office, just after the tenant is served with the
summons and complaint, and will advise of any contested court hearing, and the
Sheriff eviction date. Another extra service at no extra charge!
15. “What happens if my tenant cannot be personally served with the Summons
and Complaint, or the process server can't find the tenant?”
Even the Fastest Tenant Can’t Avoid Our
Process Servers!
No problem! Well, small problem, anyway. We carefully select only experienced
and skilled professional process servers who make every effort to hand the
documents directly to the tenant. So if your tenant cannot be personally
served it means either that he has moved out or is "ducking
service," as the seasoned professional process servers say. In these
cases, we are required to use reasonable diligence in effecting personal
service (which is the preferred method of service). The policy of most courts
is that to exercise due reasonable diligence, there must have been three (3)
attempts to serve the tenant over a two to three day period, at different
times of day. Typically our process servers will try more often, sometimes as
many as five times. If this still does not result in personal delivery, then
we are authorized to accomplish service in one or a combination of two other
ways, one of which always works.
1. Substituted Service: The papers are
delivered to a person at the premises who is apparently in charge of the
premises and is over the age of 18. Then the papers are put in an envelope,
and mailed with first class postage. The person to whom the papers are handed
is informed of their general nature and instructed to hand them to the tenant
when he returns. Note that if he does not do so that does not invalidate the
service. Our process server will then usually serve the person he has handed
the papers to with his own copy of the summons and complaint, making this
individual a party to the proceeding as a DOE I or DOE II if we can find out
his identity. We do this to avoid illegal occupants from delaying the process
by filing a claim of right of possession at the time of the Sheriff eviction.
2. Posting and Mailing: This method requires a
court order. If after due diligence the process server can't personally
deliver or do a substituted serve, then we immediately apply to the court for
an order that the summons and complaint be posted on the premises and a copy
mailed to the tenant by certified mail. These orders are granted on the day we
apply for them, except in the most inefficient courts, where there may be a
one, two or three day delay.
Both of these methods of service give the
tenant an additional ten (10) days to respond to the complaint, which is why
we try so hard to get personal service. We also instruct the process server to
continue to attempt personal service for the next ten days (when the tenant
has five days remaining to answer anyway and the point of diminishing returns
has been reached). This is an effort to save most, if not all of those
additional ten days. There is no extra charge for this service.
88% of our cases are served within three (3)
business days!
16. “Are there other ways to evict a tenant?
What if he makes a nuisance of himself or forces another tenant move-out, or
gets a pet?”
Yes. There is a large number of reasons why you
might justifiably evict a tenant besides non-payment of rent. For example, if
the tenant is keeping a pet or some endangered species (see left) prohibited
by the rental agreement. Permitting or maintaining a nuisance on the property
is another reason, as you suggest. This booklet is pretty much limited to
non-payment situations -- the most common. If you have another type of problem
which you think requires your tenant's removal, feel free to contact us. This
type of eviction usually requires careful consideration and some planning in
advance, although it often costs no more than a non-payment of rent eviction.
We will be glad to help you lay the foundation for the elimination of the
problem. These other kinds of evictions can become frustrating, if you don't
start off with the best legal and property management advice from our attorney
and Certified Property Manager.
Bill Moore &
Robert Anderson, Esq. Can Answer Your Legal Questions!
17. “My tenant has not paid his rent in two months. I have started the
Unlawful Detainer process, and now he is complaining about maintenance
problems around his apartment. Do I have to correct them now?”
We have an excellent pamphlet describing
landlord and tenant’s maintenance responsibilities titled, “Maintenance
and Eviction -- How to Win in Court.”
Yes. There are many practical reasons you will
want to make such repairs in a timely manner. Sure, you are not thrilled about
spending money on a delinquent tenant. But if your tenant attempts to fight
the eviction (and such complaints out of the clear blue are usually a prelude
to just that) you will be appearing before a judge who has the discretion to
deny you possession of the premises if he thinks you are an unscrupulous
landlord. By doing such repairs as soon as the complaint is made, you will
impress the judge with your responsibility. This will bolster your contention
that you would have handled these matters long ago if your tenant had only
mentioned them. Furthermore, you will eventually have to make these repairs
anyway, and doing them now will eliminate any possibility of deterioration of
your property while you are evicting the tenant.
Maintenance problems which might delay, or stop
altogether, an eviction can be eliminated if the landlord complies with
California law, which requires the landlord to provide premises with the
following characteristics:
1. Effective weather proofing, including repair
of broken windows (you can charge the tenant if you can show he broke them).
This includes the roof. Leaks from the roof can cause many sleepless nights
not just for the tenant but for the landlord who tries to evict. The roof must
be repaired or replaced by a qualified individual or a substantial rent credit
given to the affected tenant before any eviction ensues.
2. Plumbing facilities (water, sewerage and
gas, if the rental unit is supplied with gas) which comply with applicable law
and are maintained in good condition.
3. A water supply approved under applicable law
which provides hot and cold running water.
4. Heating facilities and electrical components
which conform to applicable law and are maintained in good working order.
5. An adequate number of garbage receptacles,
which are maintained in clean condition and good repair.
6. Floors, stairs and railings maintained in
good repair.
7. Eradication of any pest or vermin, and
maintenance of areas under the control of the owner or manager free of all
debris, filth and rubbish. A tenant who complains about cockroaches, rats and
other household pests should be contacted by a qualified pest control company
you engage, even if you believe the tenant is bringing in or breeding these.
If you have a tenant who is complaining about
repairs, maintenance or pests and not paying his rent, call our office to find
out more about your responsibilities and that of your tenants.
18. “What if my tenant or one of his guests makes the place uninhabitable?
Let’s say he breaks a window, am I still responsible?”
If the rental unit is damaged by the tenant so
that it no longer complies with the criteria set out in the previous answer,
then the tenant, is responsible, not you. The problem is in documentation, and
proving who caused the problem. There is a big difference between what you
know, and what you can prove to a third person who has no pre-existing
knowledge of the situation (that is, a judge). If an issue arises about the
unfixed broken window later on when your tenant has failed to pay rent, the
judge may well make a mistake and believe your tenant, even if the tenant is
lying and says it is all your fault. For this reason, we recommend that you go
ahead and do the repair anyway. If it is something like a plumbing stoppage,
you can usually get documentation of the cause. Most plumbers who snake out a
toilet stoppage, for example, will note what they find, and this will often
point the finger of blame right at your tenant. You can then deduct the cost
of repair from the security deposit. If you have a written agreement and it
provides for it, you can then force the tenant to replenish the deposit, and
if he does not, evict him for that reason (see us first). If you have an oral
agreement, and the tenant refuses to replenish his deposit, you can consider
terminating his tenancy on a thirty day notice and replacing him with a tenant
who will not abuse the property. Some tenants get it in their minds that they
can make repairs or improvements to the property without the landlords
permission. Some are even brazen and start deducting rent for any little
thing.
19. “Should I have any contact with the
tenant once I have authorized you to start the eviction lawsuit (unlawful
detainer)?”
A word to the wise; don’t let a tenant do
work at the property in exchange for rent and don’t let a tenant
unilaterally start deducting for
“any little thing that might come up”![3]
Probably not. First, this is one of the
advantages engaging our services offers. We will assume full respon-sibility
for communicating with your tenant, subject to your overall instructions, of
course. If settlement offers are made, we convey them immediately. While you
always have the final say, let us put our experience to work for you in these
negotiations, and relieve you of the stress of dealing with your tenant after
the decision to evict is made. You have probably been dealing with him for
sometime now and are tired of his games and broken promises. Second, from the
strategic point of view, all discussions should be made through the same
person or entity. If the tenant talks to both of us, he may, if he is
sophisticated, undercut both of us, severely weakening the position which we
have just greatly strengthened by initiating the eviction process. On the
other hand, if he speaks to and through us only, he is presented with a united
front, and cannot play one of us against the other or lean on your generosity
anymore. You would be surprised how often that sort of problem occurs, and the
chaos it creates can be devastating. You always have the final say because it
is your tenant and your property, but let us do the actual talking and
negotiating. All this is especially true if you have habitability or other
complicating problems. Some eviction attorneys just want to do the paperwork,
leaving you to handle the troublesome tenant. Not with us!
20. “I am in the middle of my Unlawful
Detainer action, and now the tenant wants to pay the rent he owes. Do I have
to accept the money and let him stay?”
No. You are under no legal obligation to take
money from the tenant after the notice to pay rent or quit expires, after you
have given a thirty day notice (see above) or after you have started the
eviction action filed in court. But here, as in so many cases, practicality
can override legal prerogatives. You are free to accept money and let the
tenant stay at any stage of the proceeding, even up to the moment the Sheriff
puts the tenant out. Your decision will be reached by weighing what the tenant
owes, against what he offers and his history with you as a tenant. Keep in
mind that, in most cases, the payoff he offers will leave your tenant
financially strapped. If you think that you may just be postponing the
inevitable, do not even think of accepting a monetary offer unless you feel
comfortable initiating the process again in a few weeks. If he offers enough,
you may not mind doing this.
From our experience, such agreements should
protect you by containing the following features. First, there should be some
written memorial of the arrangement. Sometimes this can be as simple as a
confirming attorney letter, other times, a formal, written agreement approved
by a judge is required. Second, it should specify just what payments are
required and when they should be made. A substantial up front payment is a
must. Others can be scheduled in the agreement itself and should not be longer
than 3 months. Certified funds, as opposed to checks, should always be
required, and the schedule should be strictly enforced. Third, there should be
a strict sanction for failure to comply. Typically, we include a proviso that
judgment will enter in your favor without the necessity of going to court, and
the tenant can be evicted forthwith (this is commonly referred to as a
"drop dead clause"). Finally, regardless of the exact method of
payment, it should include a recapture of your actual out of pocket eviction
expenses to date, including your eviction fees. One of the services we offer
is the negotiation and drafting of this sort of agreement.
Let our professionals guide you through the
negotiation process and drafting of any final stipulation. By doing so the
agreement or stipulation has “teeth” in it. In the event the tenant
violates the stipulation, you won’t have to start the eviction process all
over again. Just call our office, inform us of the breach and, when
appropriate, we will instruct the Sheriff to evict by serving the tenant with
the final five (5) day notice to vacate.
21. “What happens if my tenant files
bankruptcy while I am evicting him?”
A delay tactic we short circuit! The Bankruptcy
Act provides that in each filing, creditors are automatically restrained from
continuing efforts to collect money or reclaim property from him without
permission of the court. This has been interpreted to mean that a landlord
must stop his eviction action until further orders from the bankruptcy court.
If you know that your tenant has a case pending in Bankruptcy Court before you
initiate the eviction, tell us, whether he has listed you in his bankruptcy or
not.
It has been our experience that tenant bankruptcies occur about one in every
300 eviction cases. Be cautious though, if you know the tenant is up to his
gills in debt, your 1 in 300 chance might be much greater.
Most tenants who file do so as a stall, a few
are in good faith attempting to reorganize their debts, or take advantage of
the law to obtain a fresh start. Either way, you and your attorney must act
fast to obtain an order from the Bankruptcy Court permitting you to proceed to
evict your tenant, because, until you do, your action is at a dead stop.
Because bankruptcies are dealt with by the United States Bankruptcy Court and
evictions are usually in the Municipal Court of the State of California, a
separate proceeding, referred to as a Motion for Relief From Automatic Stay,
must be initiated in the Bankruptcy Court. We offer this service to clients
who are confronted with this problem and it usually consumes 3 to 4 weeks from
the bankruptcy notification to the hearing date. At the hearing, the court
considers whether or not relief should be granted to you. Because most
evictions do not involve leasehold interests or other unusual circumstances,
the court normally orders relief. This gives us permission to start or
continue with the municipal court Unlawful Detainer proceeding.
22. “I rented one of my houses to a tenant
under a one year lease. How do I evict him now?”
You cannot break the lease without cause. Your
tenant can only be evicted for (1) failing to pay the rent, or (2) breaching a
written term of the lease, or (3) creating a nuisance on the property. For
example, if you have forbidden the tenant to have a pet, and he has a dog on
the property, you can give him a three day notice to remove the dog or to
vacate. If he keeps the dog, then you can evict him. This type of notice must
be drafted with great care, and proof of breach of the lease or nuisance
carefully documented. Any such notice must state a specific cause informing
the tenant of the reason for termination of the lease. We strongly urge you to
consult us before you even discuss the breach of lease with your tenant.
23. “What do you mean by the tenant’s ‘default’
and what is a ‘writ of possession’?”
Once your unlawful detainer is filed with the
court and served on your tenant, your tenant has only a limited time to file a
response with the court. If he does so, the case is contested and we go to
trial before a judge. If he does not file a response, then we notify the clerk
and request that the tenant's default be entered. The entry of a default
precludes your tenant from attempting to open the case and request a hearing
without special and rare proceedings to do so. At the time the tenant's
default is entered, we submit a judgment to the clerk for the clerk's
signature, who enters judgment against the tenant and orders return of
possession of the property to you. This Clerk's Judgment for Possession of
Real Property contains no provision for your back rent. That comes after you
have your property back.
At the same time as the Clerk's Judgment is
presented, we also submit to the clerk a document titled “Writ of Possession
of Real Property”. This is a written order to the Sheriff or Marshal,
directing him to remove the tenant and restore you to physical possession of
the property. We deliver this Writ (on the same day it is issued, if possible,
on the next day at the latest) to the Sheriff or Marshal who has jurisdiction
of the area in which your property is located. This peace officer then is
required, within three (3) business days of receipt, to either deliver to the
tenant or post on the property a copy of the writ, and a notice requiring the
tenant to move out within five days. At this point, each Sheriff's office
differs, but, in general, they will set a date on which you should go to the
property and see if the tenant has moved. If he has not, or you cannot tell,
then you may call the officer directly to schedule an appointment for the
formal eviction. This is usually done the same day or the next day. One of the
services which is included in your flat fee is the coordination of all peace
officer activities up to the point where you schedule the eviction and accept
return of the property from the officer.
24. “I’ve heard of ways my tenant can delay
the eviction process, what are they and how do you differ from other attorney
eviction services in eliminating or avoiding these delays?”
Good Question! Since 1977 we have been the
leaders in developing all sorts of ways of accelerating the uncontested and
contested eviction process. A case in point; a few years ago a particular
regional group of tenants started to routinely demand jury trials after we
filed a request for trial setting, thereby, making the clerk re-set the trial
date to a later date. We started to file our own jury demand along with a
trial setting to eliminate this tenant delaying tactic. It worked! The tenants
and tenant attorneys yelled foul and the presiding judge said “wait a
minute, it worked for you just fine, now that the landlord’s lawyer is doing
it, you don’t like it.” The judge changed the court procedure on jury
demands so that it no longer causes additional delay. This alone has saved
landlords incalculable dollars.
24 Hour Home Service
Let’s start with when you first call our
office and ask for information about our service. Unlike many other attorney
eviction services that don’t advertise, have company brochures, “how to”
information pamphlets, fax-on-demand forms service, or a telephone system that
during non-business hours will accept eviction notice and unlawful detainer
filing requests by an automated attendant, we have all of these extra value
items available to our clients, at no additional cost. Most importantly, we
have a staff of well trained professionals who have legal, property management
experience, or some who are landlords themselves. They will discuss, without
rushing, all the case particulars and try to find legal and property
management solutions to solving the problem. We do not automatically assume
that every time a client calls that they must engage our services for a fee.
Our attorney and property management advice is usually always free.
Professional Staff
Once we know what the situation is, we will
advise you of the best course of action, immediately mail or fax you a
brochure, an information pamphlet that will assist you further with your
particular problem or offer to serve a notice or file the unlawful detainer
case. All over the phone! No office visit is necessary, although we do like to
see and talk with our clients. Most attorney eviction services require that
you make an appointment, or have eviction documents ready for pick up. We are
different. We start the eviction over the phone, or on occasion, when there is
not a clear cut eviction, we have the staff and resources to come up with
options that may not involve initiating the eviction process. This means you
are saving yourself from unnecessary legal expense. For example, when a new
client calls us, preparing a new client package is a breeze because it has all
been “computerized”. If a client has a fax, they receive the necessary
information within minutes of hanging up the phone. Our popular “Landlord’s
3 Day Eviction Kit” can be faxed and put to use that same day. You don’t
have to wait for something in the mail or go out and find your own documents
at a local stationary store.
Time is Money
Authorizing us to initiate a 3 Day Pay or Quit or unlawful detainer filing in
court can be done by way of facsimile machine too. We do not need the original
rental agreement, eviction notice, or notice proof of service to start your
case. Not even a copy in most cases! Years ago we came up with the novel idea
that since attaching any of these documents to the complaint is not required,
(we strategized), why bother to do it and let the tenant or tenant’s
attorney examine it for potential errors and missing dots above the “i’s”.
“The Eviction Assistant”
Landlord Services’ Emphasis is on Providing Speedy and Quality Eviction
Service.
Summons and Complaints are prepared within minutes of your authorization and
if you faxed us the documents we will either confirm your request by phone or
by facsimile transmittal. How can we prepare a complete Summons and Complaint
package within a few minutes, while other attorney eviction services take
hours or even days to do the same? Since 1979 we invested some of our profits
and developed one of the most sophisticated and simple to use computer
software programs to produce all of the necessary documents. Doing the
paperwork is like falling off a log. This allows us to file the eviction
action, locally, that same day and regionally within 24 hours. This means that
your action is prepared and filed immediately, and is out for service that
night when the tenant is most likely to be home.
3 The three major causes for eviction delays
are: 1. Process server unable to personally serve ALL the tenants with the
Summons and Complaint (discussed in question 15), 2. Trial judgment not signed
by the judge when an action is contested, (refer to question 27) and 3. The
tenant filing motions, answers or bankruptcy. See our pamphlet titled, “What
Happens if My Tenant Fights the Eviction Action.”
25. “My tenant filed an answer in response to
the Summons and Complaint and my attorney has asked for a spot on the court’s
trial calendar. Do I have to appear in court?”
Yes! When your tenant files a response, your
attorney will need at least one person to act as a witness. This need not
necessarily be the owner, but must be a person who has direct, actual
knowledge of how and when the eviction notice was served and how much rent is
due. Note, actual and direct knowledge does not mean that someone told the
witness that the notice was served. Written "affidavits" also will
not do. The person required is the person who served the notice or actually
saw it being served, or the person who collects the rent. Sometimes, more than
one person is required to satisfy the requirement of direct knowledge. Don’t
worry if this is your first or one-hundredth time, our attorney prepares very
well and makes you always feel comfortable with the trial proceeding.
26. “How long does it take to get a trial
date in a contested eviction?”
After the tenant has been served with the
Summons and Complaint he usually has five (5) days to respond to the court.
Approximately 20-30% of tenants will file an “Answer.” We immediately
request from the court the soonest available date. California law requires
that the trial date in a contested case start within twenty (20) days of the
date a Memorandum to Set Case for Trial is filed with the Clerk. The clerk
must give ten (10) days written notice by mail to all parties of the trial
date and location. So you can count on a trial within ten to twenty days of
the date we learn your case is contested. Occasionally, more than twenty (20)
days is required, as, for example, if holidays or weekends make setting within
twenty days impossible. Also, some courts with very crowded calendars
"cheat" by marking the Memorandum to Set "received" and
not stamping it "filed" until they know they have a trial date
available within twenty days. Even in these cases, however, the trial date is
always within a month of the date it is requested. Because of our experience
and production of quality paperwork, our cases travel smoothly throughout the
court's scheduling process. Most every case is set within 20 days and we
promptly mail to you a trial date notification report that describes the date
and time of trial, our strategy for a successful trial result, what you can
expect, a sample of witness questions and we include an estimated date when
the tenant will be evicted after the trial.
27. “I am at court with my attorney, the trial judge has ruled in my favor,
now when will the tenant be evicted?”
Judge of the Court
First, (and we were the first of the eviction
attorneys to do this), we have ready as many as four (4) proposed judgments
and submit the appropriate one to the judge, at the end of the trial. So, our
attorney goes to court equipped with judgment forms which cover almost every
contingency. He will submit one of these to the judge who will sign it on the
spot or later that day. The judge's clerk then enters the judgment in the
register of actions or the judgment book. From this point, the procedure is
the same as that discussed above under the default and writ of possession
question. Sometimes, particularly where the tenant has children in his family,
the judge will give the tenant some additional time to vacate, almost always
after the tenant pays some money to compensate you for the additional time. In
these cases we coordinate with the Sheriff to schedule the eviction for the
next available day after the additional time expires.
We were also the first attorney eviction
service to work hard at minimizing loss of time between the moment the judge
decides you may evict and the moment the Sheriff actually moves the tenant
out. Many of the things which now constitute part of the minimum standard of
service (such as the preparation of the court's judgment in advance) were
innovations which we first implemented. Even now, the preparation of several
alternative judgments, to cover almost all possible contingencies, is
something unique to our service. We take great pride in making sure that
everyone does their part to guarantee that you get your property back timely.
28. “How do I know when the Sheriff serves
the Five (5) Day Notice to Vacate?”
Each Sheriff or Marshal has his own specific
procedures. When you receive our report after the tenant is served with the
Summons and Complaint, it will contain an estimated eviction date and some
particulars as to how the officer in your jurisdiction operates. Please be
advised that the Sheriff does not evict on weekends or holidays and because of
scheduling and serving requirements, many Mondays and Fridays. Generally,
however, it works like this:
Once the Sheriff serves the “Notice to Vacate”
the tenant is given a minimum five (5) days to vacate. The Sheriff has it “easy”
in one regard, if the tenant isn’t at the premises, he POSTS the notice
anyway, which is perfectly proper.
Bill Moor
1. The Sheriff will notify us of service of his
final notice and give us a tentative eviction date. We promptly pass this
infor-mation on to you by way of a telephone call or facsimile transmission.
2. Once you have been told the Sheriff’s
notice has been served and what the tentative eviction date is, you should
drive by the property to see if there are any preparations being made by your
tenant to move.
3. You or your agent must meet the Sheriff at
the appropriate time, to accept turnover of the property to you, if the tenant
refuses to vacate voluntarily.
4. Have a locksmith or your handyman standing
by to pick or break the lock (if necessary) to let the Sheriff in, (only at
the time the Sheriff instructs you to do so), and to change the locks (always
necessary) after the Sheriff has completed the physical eviction. Most
Sheriffs will keep open eviction case files for a few days after the last day
for possession, however, it is not a good idea to rearrange different last
dates for possession.
5. Have a camera and, if possible, a witness
with you. If the tenant has left personal property behind (even trash bags and
dust balls), take photographs and make notes. When the pictures are developed,
you might want to have the witness sign them on the back to verify he was
there when they were taken. This will shield you from spurious allegations
that you stole the tenant's valuables. See also question number 32 below.
6. Start lining up your vendors to clean,
paint, repair, refurbish, and assist in rerenting the property. You may even
want to start your ad, with an availability date comfortably past the
Sheriff's scheduled eviction. The whole point of the eviction, after all, was
to be able to rent with minimum delay, to a new tenant who will pay the rent
on time.
7. Start thinking about how you might collect
the money the tenant owes. We can commence this process for you immediately
after the Sheriff returns possession to you, and will flag your case for
special handling if you tell us to start now.
See Questions 34 and 35
FOR ADDITIONAL INFORMATION ON how to COLLECT
what the tenant owes you.
29. “The Sheriff served the Five (5) Day Notice, how do I know if the tenant
is out?”
This is another area we really excel at, let me
tell you... because we provide detailed advice on how to tell if the tenant
has vacated, abandoned or is still in possession. Most tenants though, vacate
during the eviction process or skip out before the Sheriff actually returns
possession after service of the final eviction notice. We recommend that the
landlord always “play it safe” in these situations. Assuming the tenant
did not telephone or contact you and inform you that he has vacated, you will
need to investigate whether or not the tenant has actually vacated the
premises. Talk with neighbors and inspect the exterior of the tenant’s
premises. Many times neighbors will see the tenant packing up and loading a
truck. When you drive by or stop to examine the property, take a look around
and check to see if the tenant’s car is there, are newspapers piling up on
the door step and is there mail overflowing from the mailbox?
If you don’t see any strong indications that
the tenant is gone, then keep playing it safe by preparing and posting a 24
hour Notice of Intent to Enter Dwelling (available from our office or our
fax-back service). The next day, after the 24 hours notice has expired, take
your pass key, knock two or three times on the tenant’s front door, identify
yourself, and then, if you do not get an answer, unlock the door. Now open the
door just enough to announce yourself, and ask for the tenant. If no response,
and you don’t see any furnishings, push the door open more, (if you do see
furnishings or sense that someone is there, lock the door and close it).
Otherwise continue walking in and keep identifying yourself and asking for the
tenant. Go in further and look around. Walk into the kitchen, do you see any
pots and pans on the stove, in the sink? Check for silverware, any in the
drawers? Pull open the refrigerator door, any food or is it molding? Next, go
into the hall and bedrooms, do you see any bedding, beds, clothes, furniture?
Last, check the bathroom, most tenants will take their toiletries, including
their toothbrush, comb, etc. If the premises appear to be vacant and any
personal property remaining is worth less than $300 then you should call our
office to obtain a second opinion and make a judgment call as to re-taking
possession. Our office, cannot advise you to retake possession, without the
Sheriff’s final execution of the writ. However, you can make the best
decision given the circumstances of the situation. If you determine the tenant
has moved out then retake possession and call off the Sheriff. If you are not
sure, it is best to let the Sheriff “officially” return possession to you,
it’s only a few more days. If the tenant returns and finds out that you have
prematurely re-taken possession he may claim a wrongful eviction and file a
lawsuit against you.
30. “The Sheriff has served his eviction
notice and is scheduled to meet me next week. What can my tenant do now to
delay the eviction?”
The good part to this answer is that since the
vast majority of cases are uncontested, they remain that way unimpeded through
any Sheriff final eviction. Unfortunately, in about one (1) in every twenty
(20) cases, there is one (1) or more things which your tenant might do to
delay the eviction at this point in time. Consider too the many things we do
to counteract and avoid or minimize their effect. Yet, like it or not, we live
in a world that is filled with attorneys, some say too many, and tenants as
well as landlords who have many legal rights they may or may not exercise.
Such as filing bankruptcy, requesting additional time from the court, etc.
Some tenants file bankruptcy, in the mistaken
belief, fostered by some unscrupulous paralegal services, that this will
postpone the eviction indefinitely. We efficiently deal with this problem for
you. See question 21.
The most common type of delay is the lazy
tenant asking the court for additional time to moveout. As if all those
official looking eviction documents and buildup of rent money was some sort of
game like Monopoly! There are tenants that do no planning whatsoever regarding
moving out. Rather, they wait until the last minute, panic when they receive
the Sheriff’s notice, and then find ways to further take advantage of “the
system”. The tenant, with some help from Legal Aide or tenant oriented
paralegal services, or even some attorneys, will prepare what is called a
proposed “stay of execution” of eviction. Almost all municipal courts will
grant the tenant additional time to vacate provided the tenant has made a
proper application. The tenant is required to submit papers to the court
explaining why he cannot vacate as scheduled. With these papers, he must
submit a rental payment to the court in the amount of the daily rental value
multiplied by the number of days he is requesting to move. For example, if the
monthly rent is $750.00, this works out to $25 per day rent. Should your
tenant request an additional ten (10) days to move, the court will require
that he submit $250.00 in cash or money order, to the court clerk, as a
condition of the judge signing the postponement. The clerk will then forward
the rent money to you and may request our office to prepare and file a simple
declaration requesting payment, which we submit on your behalf at no
additional charge. No time is lost with the Sheriff either, the court
transmits a copy of any stay order and the Sheriff reschedules the final
eviction.
Most courts will grant only one (1) such stay
of eviction, and because the rental value is submitted to the court with the
application, the court feels that such a postponement does you no harm. We
understand, however, that postponement of the eviction can cause repercussions
which are not always obvious, particularly if you have a new tenant waiting to
move in on a date you have set in reliance on the scheduled eviction date. For
this reason, in cases in which we believe the tenant may be requesting
additional time, we file a declaration setting forth our objection to any
application for postponement of the eviction. In cases in which a stipulated
judgment has been entered by agreement we include a clause precluding any
postponement of the eviction and where there is a serious chance of harm, our
lawyer will go to court, if notified of the application, and represent your
interests there.
In any event, unless you agree to the contrary,
the court cannot “stay” enforcement of its judgment for more than forty
(40) days from the date of judgment, and will collect the rent for the period
of delay. Typically though, stays are for one (1) or two (2) weeks in duration
only.
Finally, there may be a claim of right of
possession (in the “ud” business this is referred to as a “CROP”) by a
person other than the original tenant. Such a person, who occupies the
premises prior to the filing of the complaint, is entitled to have his claim
heard by the court before the eviction can take place. Such claims are made
through the Sheriff's office and are heard usually within five (5) days of the
date that they are made.
At the court hearing, you, our eviction
attorney and claimant will present the case before the judge. The court will
decide if this adult occupant (claimant) is living at the premises with your
consent, express or implied, and whether or not he has paid any rent, prior to
the filing of the complaint. The testimony will determine if he is a “tenant”
and therefore entitled to be named in the original eviction action. This is
why we ask for the names of all adults who are in occupancy of the premises,
whether they have made a rental agreement with your or not. In addition, we
instruct our process server to serve any adults who admit to living on the
premises as "Doe" defendants at the time service occurs on your
original tenant. Such individuals can be cut off from this type of claim if we
know about them in advance. Otherwise, you run the risk of having to start
over again as to the unauthorized occupants. Remember, the question is whether
the occupant occupies the premises with your consent express or implied.
Excellent pre-screening of cases avoids most every single “crop.”
While there is a separate legal procedure for
attempting to root out such claims at the time the action is filed (referred
to as “Pre-judgment Claim of Right of Possession”), the procedure is not
well thought out, saves no net time, and may, in fact, extend the time
required to evict if there are no real claimants to the action.
31. “Do I have to meet with the Sheriff when
he completes the eviction?”
Only if the tenant or any one else is occupying
the property. In that event, someone must meet with the Sheriff to formally
receive turnover of the property. An obstinate tenant who refuses to recognize
or take seriously the Sheriff's Notice occurs with too much frequency. One
would think that after all the legal notices, the luxury of not paying rent
for some weeks or months and the knowledge that he has no chance of staying,
he would want to avoid the embarrassment of the Sheriff eviction. Physical
tenant eviction only happens in about one (1) out of ten (10) cases, but that
is no consolation if you are the one meeting with the Sheriff. And if this is
so, someone, either you, your agent, or your resident or property manager, who
has qualified himself with the Sheriff in advance must be there. In addition,
the Sheriff must have access to the rental unit or he cannot perform his
duties. Have a handyman there to pick or break the existing lock (even if you
have a key, the tenant may have changed the locks without your knowledge).
Regardless, even if changing the locks is not required, you will certainly
want to change the locks after the Sheriff finishes so that the old tenant
can't just move back in and besides, the new tenant will feel secure about
knowing the locks were changed.
Once the Sheriff has removed any tenant and
returned the premises to you, you will be issued a receipt for possession and
be authorized to re-take the subject premises.
32. “When the Sheriff comes out to evict the
tenant, will he move the tenant's belongings out, too?”
No. Before 1970, the Sheriff would employ a
keeper to inventory and pack up the tenant's property. Since then this
responsibility has devolved to the landlord. You must deal with the property
in the manner required by law in order to avoid any possible liability to the
tenant later on.
You must store the property in a place of
safekeeping for at least eighteen (18) days after the eviction. This can be on
the premises or at another location. "Safekeeping" means simply as
safe as you would store like property which belongs to you. You should always
make a written inventory of what was left sufficiently specific to permit the
property to be identified, and do so in the presence of a witness.
Photographing the premises and its contents is a good supplement to a detailed
written inventory.
During this 18 day period, the tenant must be
permitted access to the place of safekeeping to retrieve his property. This
shall be done only during normal business hours. If he wishes to remove
property, you must permit him to do so, and may only condition return of the
property on his paying the reasonable cost of storage (not the back rent, not
the rental value of the property, just what it would reasonably cost to store
the property itself). Smart landlords don't bother, however, and just let the
tenant remove the property to get the stuff off the premises. Some times you
might run into a lazy and persnickety former tenant who just wants to grab his
toothbrush and medicine. Items that are needed because of a medical condition
or badly needed by the former tenant, should be turned over without any talk
of reimbursement for storage costs. However, any former tenant who only moves
a few items needs to be informed that EVERYTHING must be removed from the
premises and IMMEDIATELY. Don’t give the tenant the opportunity to take
advantage of the situation and come back on numerous occasions to move a box
now, some shirts and another box later on. Be firm and stand your ground.
State to him that it will be necessary for him to get a truck, a moving van or
friend’s car with a hitch to pull a trailer so that the job of moving can be
done at one time and during consecutive daylight hours.
If the tenant tells you to that he is leaving
behind personal property that he doesn’t want, confirm your understanding
that you may dispose of it. Later, send him a note, nonetheless, memorializing
the conversation.
WARNING:
DON’T LET THE TENANT STAY OVER NIGHT IN
THE UNIT. sheriff RETURNED PREMISES using THE EXCUSE OF GETTING AN “EARLY
START” IN THE MORNING. IF YOU DO, YOU COULD BE CREATING A WHOLE NEW TENANCY!
If, after the 18 days, the tenant has still not
claimed all of his personal property, then you must make a decision. If you
believe the property in its present condition is worth less than a “flea
market” auction value of $300.00 you may dispose of the property any manner
you chose. If, however, it is worth more than $300, then you must have a
public sale. Our pamphlet titled "What To Do With the Tenant's Personal
Belongings After the Eviction Is Completed" contains the details on this
subject.
33. “Do I have to return the tenant's
security and cleaning deposit?”
Not necessarily. But you must always account to
the tenant for what you have done with his deposit. The deposit is a
prepayment by the tenant for possible damage to the property over and above
normal wear and tear, cleaning, and any other amounts he may owe at move out.
Sometimes such a deposit is earmarked, such as a pet deposit, or last month's
rent deposit. Such deposits should be set off against the item for which they
are intended first, but the balance can still be set off against other amounts
which the tenant owes. We recommend that you decide, at the start of the
tenancy, how large a deposit you need, considering any pets, last month’s
rent and other factors, and collect one deposit, calling it a security
deposit.
Even if the tenant owes you money, you must
account for the deposit and notify the tenant!
The accounting referred to above must be sent to the tenant at his last known
address (which can be the premises if he has not given a forwarding address)
within twenty (21) days of the last day of occupancy by the tenant, or the
date you regained possession of the property if you do not know the date the
tenant moved out. Some rental agreements specify fourteen (14) days, and this
controls if you have such an agreement.
You can deduct from the deposit the following
items, and you should deduct them in this specific order:
1. Restoration of any damage to the premises,
over and above normal wear and tear [4].
2. The cost of cleaning the premises.
3. Any other amounts the tenant owes, such as
any late charges, broken window or plumbing stoppage charges, past due or
prorated rent and lastly; court costs and attorney fees, if you have been
awarded attorney fees or have a contract that says you are entitled to them.
The above form is available to all our clients!
We advise deducting in this order because if
your tenant has vacated before judgment was entered against him, then we can
go on to get a judgment for your rent and costs. But if you apply the deposit
against rent and costs first, then a whole new action, probably in small
claims court, would have to be filed before you can have a judgment for damage
and cleaning costs. This would necessitate a new expense and hassle. Call our
office and ask for a free copy of our security deposit accounting form, which
includes “how-to” instructions, this will help ensure your accounting is
complete.
Finally, after you have done the above, mail
the accounting (keep a copy) to the tenant’s forwarding address. If you do
not know it, mail it to his last known address - the rental property. If he
owes you money, include an unequivocal demand (but no threats). For example,
“This is my demand that you pay the amount as shown and in full not later
that fifteen (15) days from receipt of this statement.”
34. “How do I get the money that the tenant
owes me after he has moved out?”
If your case was contested, you will have
obtained a judgment for money when the judge rendered his decision. If your
case was uncontested, that is, it went by default, then we can follow through
to obtain a money judgment for you on your request. All we need is for you to
contact us with the last day the tenant was in possession of the property, and
the amount of any deposit credit which the tenant may have against his rent
obligation, after deductions for repair and cleaning of the unit as we
described in question 33.
When we initiate the money judgment process,
you will be asked to sign a document called "Declaration in Lieu of
Personal Testimony". This paper includes all the information which the
court in your specific jurisdiction requires to enter a default judgment for
the rent, costs, and attorney fees, if appropriate, which the tenant owes.
This part of the process is assigned a much lower priority by the law (not by
us) than your case was assigned when the tenant was still unlawfully detaining
the property. Still, in most cases, we can have your money judgment for you
within a few days to a month of the day you ask for it. Some of the courts
require that you physically appear to present testimony as to what the tenant
owes (San Rafael, Richmond and Sacramento Courts). While this seems
unnecessary, it is still a requirement and you will be advised of the date of
the hearing as soon as the court schedules it.
Once the judgment is entered by the deputy
court clerk, it will appear in the public record and be valid for ten (10)
years. The judgment will attach to and become part of the tenant's permanent
credit record. During this time, it will be nearly impossible for the tenant
to obtain any major extensions of credit (such as for a car or a home, or for
any sort of credit card). So even if you do nothing more, there is a
reasonable chance of being paid. We have been contacted in many cases by
tenants we evicted six, seven or more years ago, wanting to pay the judgment
off. The judgment accrues interest during this time as well.
The next step is collection. There are avenues
you can actively pursue to collect your money. First you have to determine the
collectability of the judgment. Is the tenant still working? Does the tenant
have any checking or savings accounts? Does he or she have any other assets?
Is the tenant still in the area? For example, if your former tenant has paid
rent by check, we can have the checking account levied to collect the
judgment. If he has a job, we can obtain an earnings withholding order to have
up to one quarter of his net pay withheld and transferred to you to pay the
judgment. If you have this information, you may wish to ask us to initiate
such proceedings. They require advance payments to the Sheriff or Marshall to
initiate, but can be extremely effective in collecting your money.
If none of these vehicles is available, the
chances of getting your money are relatively low. In these cases you should
refer the matter to your favorite collection agency or look one up in the
yellow pages. They will charge a contingent fee of between 40% and 60% of what
they collect. Be sure to ask for quarterly or semi-annual progress reports. Be
mindful, however, that if your tenant is content to live under ground, or file
bankruptcy, you will never see the money. But don’t give him a free ride, at
least turn it over to a collection agency. He might surface one day like fresh
air and sunshine! Keep in mind that the sooner the account is acted upon the
greater your chance of collecting your money. For more information on this
subject ask for our booklet entitled, “How to Collect the Money Judgment.”
35. “I’ve gotten the tenant out and
obtained money judgment, but, the tenant has done a lot of damage to my
rental, what can I do about that?”
Lots. Since your tenant is out, you will
already have prepared a security deposit accounting (see above question 33)
which includes the amounts necessary to repair damage to the property. Now
deduct from the accounting the amounts you obtained as a judgment for rent,
costs and attorney fees, because you cannot obtain more than one judgment for
the same thing. What is left is what you can pursue the tenant for in small
claims court (if it is less than $5000.00), and this is a decision which must
be weighed in light of several factors.[5]
Do you know where the tenant is now? If you
file in small claims court, you will have to serve the tenant with more legal
papers. Do you have a well founded expectation of actually collecting from the
tenant if you get a judgment? The judgment will only be as valuable as the
tenant's ability to pay. If the tenant is what we refer to as "judgment
proof", then you might more profitably use the three or four hours of
time the small claims action will consume making money in other ways.
Small Claims Court
If you decide to go to small claims court then
make sure you are prepared. Have documentation of everything you have spent,
and be sure to bring along a copy of your security deposit accounting,
together with all the receipts and invoices (such as the one you received from
us), which prove you have paid, or need to pay, the amounts you are claiming.
Rehearse your presentation, and keep it to three or four minutes (which is a
long time if you use it wisely and economically). If you need help getting
ready, our attorney Jeff Moore, Esq., will consult with you to give you
pointers on how to present your case. You can also request our booklet
entitled, “Landlord’s Guide to Small Claims Court” for more information.
As with any money judgment, the one you obtain
in small claims court is good for ten (10) years. But do not delay your
collection effort, start as soon as you can. Studies show that most money is
collected within the first few months of entry of judgment. After that, the
collection rate falls off dramatically.
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