Brief Overview of the Eviction Process – San Diego Landlord-Tenant Attorney
When landlords and tenants enter into a lease or rental agreement, they rarely consider the possibility that the tenant will not be able to pay rent at some point during the lease term. However, it does occasionally occur that the tenant cannot pay rent for whatever reason and the landlord is left with no options but to evict the tenant. This article will provide a brief overview of the eviction process, as a result of the nonpayment of rent.
In California, landlords are absolutely prohibited from employing self-help procedures to evict a tenant. This means that a landlord cannot simply change the locks of the premises if a tenant is not paying rent. Rather, the landlord must go through the court system to regain possession of the premises at issue.
Three Day Notice
The first step a landlord must follow when attempting to evict a tenant for the nonpayment of rent is to provide a Three-Day Notice to Pay Rent or Quit. Generally, this notice must tell the tenant that he or she must pay the rent or move out of the premises within three days. There are various statutory requirements for the language that must be included in the three-day notice, so it is generally advised that a landlord consult with an experienced attorney before typing up his or her own notice.
If the tenant has not paid rent or moved out of the premises upon the expiration of the three-day notice, the landlord may file a complaint against the tenant in court. This complaint is what is known as an Unlawful Detainer Complaint and is what formally begins a lawsuit. The complaint must be properly served upon the tenant pursuant to California law. The tenant must then respond to the complaint within five days.
If the tenant does not respond to the complaint within the five-day deadline, the landlord can immediately ask the court to issue a default judgment against the tenant. The court will most likely issue that judgment right away, which the landlord can take to the Sheriff’s Office. The Sheriff's Office will then change the locks so that possession can be handed over to the landlord.
However, if the tenant does respond to the complaint, the whole process is delayed. There are generally three different types of responses that tenants often use when responding to a complaint:
1. A Motion to Quash Service of Summons is typically filed by a tenant if the complaint and summons in the case were not properly served upon him or her;
2. A Demurrer is typically filed if the tenant alleges that the complaint is not in proper technical form or fails to properly allege the landlord’s right to evict the tenant; and
3. An Answer is filed by a tenant to deny statements in the complaint or allege other facts to show why he/she should win the lawsuit.
All of the above responses by tenants typically delay the entire eviction process. However, after any applicable Motions to Quash or Demurrers are ruled on by the court and the tenant is ordered to file an Answer, a trial will generally be scheduled on an expedited basis. The trial will be the forum for both sides to deliver their arguments to the Judge, who will then issue a ruling in the matter. If the landlord wins possession of the premises at the trial, he/she must then take that judgment to the Sheriff’s Office, which will then change the locks on the property so that possession can be handed over the landlord.
This is just a brief overview of the eviction process, but it should give you a strong idea of the procedure that a landlord must utilize to regain possession of a piece of property because of a tenant’s failure to pay rent.
For further information, please contact us at firstname.lastname@example.org or 858.519.7333 to discuss your landlord/tenant matter.