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Copyright 2014

The landlord's mysterious stranger is not much like Mark Twain's.  The landlord's mysterious stranger appears just at the point where the Sheriff is ready to evict the tenant occupying unit 8 who has paid no rent for five months and has put the landlord to the expense of retaining counsel and going through a court trial to earn the right to get the property back.  By lodging a claim of right to possession the mysterious stranger brings the entire process to a halt.  The title of this column was selected, and plagiarized from Mr. Twain, because in nearly all cases, the claimant is unknown to the landlord, and in most cases, his presence not even suspected.

The resulting delay is not arbitrary or capricious.  A grant of a tenancy creates a vested right to occupancy of the demised premises.  Persons with a legitimate right to occupancy are entitled, when that right is to be terminated without their consent, to notice and an opportunity to be heard under concepts of due process that go back centuries.  It is part of the right to property which inheres in all persons.  The claim of right to possession procedure which sometimes interrupts unlawful detainer proceedings is designed to determine promptly whether the claim is legitimate.  The purpose of this column is to discuss this type of claim and its impact on the eviction proceeding.

The claim of right to possession is made after trial and judgment and service of the writ of possession by the Sheriff or Marshal.  Its purpose is to permit a person who is not named on the writ to attempt to assert any claim he has to possession of the property.  Such a person perfects the claim by giving to the Sheriff or Clerk of court a properly completed form stating generally the nature of his claim, together with a filing fee and, in some circumstances, payment for 15 days of rent.  If the rent is paid into court, a hearing is set before a judge within fifteen days to determine whether a claim exists, and if it does not, the money is turned over to the landlord.  If the rent is not paid into court, the hearing occurs within five days.

Most claimants are persons who are or have been in actual occupancy of the property for some time.  Occasionally, a tenant needing time to move will enlist the help of a shill to lie and execute a claim, even though it is executed under penalty of perjury.  There have even been incidents in which individuals have kept track of evictions through court records and "hired out" their signatures for money in order to secure the tenants being evicted more time.


Only persons in actual possession of the premises before the unlawful detainer complaint was filed may make a valid claim of right to possession.  Anne going into possession of the premises after the complaint was filed is subject to the judgment in the case and may be evicted under the writ without further proceedings.

Not all persons in occupancy of the premises before the complaint was filed have a valid claim of right to possession.  The statute governing the proceeding excludes an "invitee," "licensee," "guest," or "trespasser."  The statute itself does not define these terms, but they have legal meaning.  On the face of it, in order not to come under one of these categories, the claimant would have to show that he has a rental agreement with the landlord, or a person in privity with the landlord, such as the landlord's tenant.  In other words, he either must be a tenant, subtenant or assignee who went into possession before the complaint was filed.  This defines the limit of the court's inquiry at the hearing.

It should be noted that express agreement with the landlord is not the only way a rental agreement may arise.  It may also arise through implication.  For example, if the tenant's boyfriend has been living in the apartment for a substantial period of time with the full knowledge of the landlord while rent has been paid, he will undoubtedly be held to be a tenant.  This type of situation will be dealt with below.  At this point, we deal only with situations in which the assertion of possessory rights comes as a surprise.

What happens after the hearing depends on whether or not the claim is sustained, and if it is, what type of eviction is in progress and whether or not the claimant is in an eviction control situation.


The claim will be denied if the claimant fails to pay the filing fee or obtain an order to proceed as a pauper, or the court finds that his claim is not meritorious.  If this happens, then the Sheriff is given an order to that effect and he will proceed to evict all occupants at the earliest practicable time.  If rent was posted into court, it will be released to the landlord.


There are two possible routes down which the eviction may proceed if the claim is found valid.  In either case, any rent posted will be released to the claimant.  The fact that the claim is found valid, however, does not mean that the claimant remains in possession.  It merely means that the landlord may assert that our mysterious stranger unlawfully detains the premises, and the stranger can assert any defense to that claim as the original tenant might.  Any judgment entered against the original tenant remains in full force and effect.

If the eviction is based on a thirty day notice (but see below under EVICTION CONTROL), a three day incurable notice for breach of covenant, lease expiration, or a three day notice for nuisance, then the complaint is deemed amended on its face to add the claimant's name, and the landlord or his attorney hands him a copy of the summons and complaint on the spot.  The claimant, now defendant, may answer or not, as he chooses, and the case will proceed by default or to trial, depending on what he does, just as if he had originally been named.

If the eviction is based on a notice to pay or quit, or a curable notice of breach of some other covenant, then the landlord, as to the claimant, is back to square one.  The landlord will need to serve the notice on the claimant, allow him time to pay the rent or cure the breach, and if he does, everything stops.  If the claimant does not cure or pay, then the landlord may file a supplementary complaint and obtain a new summons naming the claimant, have him served, and go from there.


Eviction control raises its own problems.  While a subtenant is not normally entitled to service of a thirty day notice served on his master tenant by his overlandlord, which is what entitles the landlord to proceed without service of such a notice in a normal case, this may not be true in eviction controlled jurisdictions such as Berkeley, San Francisco, Santa Monica, etc.  The rent control ordinances in such jurisdictions generally include "subtenant" in their definition of "tenant."  Eviction of such a "tenant" is expressly conditioned upon delivering a statement of the "just cause" for eviction as defined by the ordinance.  Thus, in eviction controlled jurisdictions, the landlord may have to serve a new thirty day notice on the claimant.


Regardless of the ultimate outcome, the unlawful detainer disfigured by a claim of right to possession is nothing but ugly.  There are things which the landlord can do to minimize the risk of such claims, and a procedure which will allow the risk to be managed.

The most effective way to prevent being victimized is to keep track, as closely as possible, of who is residing in the rental unit.  Where there is evidence of additional occupants, the tenant should be questioned.  If the presence of additional occupants is denied, this should be confirmed in writing.

If the landlord knows that there are additional occupants, they should be named in the eviction notice and the complaint.  This is the "tenant boyfriend" example we gave above.  There is no point in self delusion.  The fact that the occupant may not have "officially" become a tenant, or "formally" entered into a rental agreement, is no good reason to omit him from the eviction proceeding, and will only lead to problems later.

Where the landlord knows or suspects that there may be additional occupants but does not know their names, there is a procedure which he can follow which will mitigate his problems.  This is called service of a prejudgment claim of right to possession.

In this procedure, in addition to the summons and complaint served on the known tenants, additional copies with a prejudgment claim of right to possession attached, is served on any additional occupants, or suspected additional occupants, known or unknown.  Such service may only be accomplished by the Sheriff, Marshal, or a registered process server.  Service of these documents is complicated, but the professionals know how to do it.

After service of the prejudgment claim of right to possession, any persons not named in the complaint must file a response to the complaint asserting their defenses to the eviction or forever hold their peace.  Once judgment is entered, no claims of right to possession will be entertained and, theoretically, no delay of the eviction will occur.  "Theoretically" is inserted because this all assumes that the Clerk and Sheriff have a perfect handle on what is going on in each of thousands of files at all times.  Nevertheless, even if the claim is inadvertently calendared, the prejudgment claim is sufficient to assure it will be denied and the landlord will not have to start from scratch.  The prejudgment claim of right to possession does cause some small additional investment of time on the front end.

The claim of right to possession is a frustrating but necessary adjunct to many unlawful detainer proceedings.  It comes at a time when the landlord believes he has finally run the gauntlet and will liquidate his problem once and for all.  It is very like expecting to finish a long distance race and being told that one miscounted the laps and there are still a few to go.  Realistically including all who may claim possession at the start will do much to alleviate the problem.  If the landlord believes there may be unknown occupants, the prejudgment claim of right to possession is the way to go.  The suspicion that this problem may arise is itself sufficient proof that the services of a good eviction service or attorney are needed.

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