How Can an Attorney Help Me With the Eviction Process?
As a landlord, evicting a tenant is the last step that you would ever want to take. However, many landlords will one day find it necessary to begin the eviction process against a current renter. A skilled Orange County eviction attorney from Schiff & Shelton can help you navigate the eviction process and successfully resolve your property dispute.
Most California landlords seek to evict tenants for non-payment of rent, although evictions may also be based on several other factors, including expiration of a lease for a fixed term, non-compliance with specific terms of a lease or rental agreement, and unlawful activities, or after a foreclosure. Eviction cases in California are called âUnlawful Detainerâ or âForcible Detainerâ proceedings.
As a landlord in California, you cannot simply evict a tenant because they are late, or even severely late, in paying their rent. Before taking any action to evict, you must serve the tenant with notice. The amount of time of notice you must give the tenant depends on why you are evicting the tenant and is set forth by California law. If you are evicting the tenant based on non-payment of rent, then you must give three days notice. If it is for another reason, then you may have to give thirty, sixty, or ninety days notice based on the requirements of the California Code of Civil Procedure or the California Civil Code. Here, we will focus on the eviction process for tenants who fail to pay rent, but also handle matters involving the more complex issues arising from other bases for eviction.
The eviction notice for non-payment of rent, or the Three Days Notice to Pay Rent to Quit, has to meet all legal requirements as stated in the California Civil Code and California Code of Civil Procedure. An Orange County eviction attorney from Schiff & Shelton can help you draft a notice of eviction. Generally, your notice must contain the following information:
1. The exact amount of rent that is due. This amount should not include any fees which are owed, such as late fees. This is the minimum amount the tenant must pay in order to avoid further eviction proceedings.
2. The name, telephone number and address of the person to whom the tenant can pay rent. If the amount owed is paid within three days, the landlord must accept the rent.
3. The location and hours during which rent can be paid. If no location is listed the âmailbox ruleâ will likely come into effect, meaning that the rent will be considered paid when mailed.
Serving this notice on the tenant begins the eviction process. According to the Code, you must serve the three-day written notice by one of three ways:
- Personal service (hand it to the tenant or leave it with them if the tenant refuses to take the notice);
- Substituted service on another person (leave the notice with a person of âsuitable age and discretionâ and also mail a copy to the tenantâs home); or
- Posting and mailing (if you cannot serve the tenant with the other two methods).
Some words of caution to landlords:
- If you not provide the hours and location where rent may be paid in person, the rent may be considered to be âpaidâ when it is placed in the mail;
- You must accept payment of the total due if paid within the three day period;
- If you accept payment of less than the total due, or accepts payments after the three day period has run, the three day notice is no longer valid and cannot be used as the basis for eviction;
- The last day of the three day period must be a business day (the three day notice cannot expire on a weekend or a holiday); and
- Any type of self-help by the landlord, including terminating utilities, changing locks, and the like, is strictly prohibited.
Overview of the rest of the eviction process
After you properly serve your notice to your tenant and your tenant did not paid the rent due before the three-day notice period expired, an eviction proceeding may be filed with the court. The court case generally proceeds as follows:
- The case is filed with the court and the court clerk issues a âSummonsâ;
- The Summons and Complaint is served on the tenant (a licensed process server is recommended);
- If the tenant files an âAnswerâ to the complaint, the case is set for trial in front of a judge;
- If the tenant does not file an answer or otherwise respond to the Summons a default may be entered;
- If the landlord wins at trial, or if the tenantâs default is entered, the court clerk will issue a âWrit of Possession;â
- The Sheriff serves the Writ of Possession and arranges for the tenant to be lockout-out of the property.An Orange County eviction attorney from Schiff & Shelton can also help you navigate possible legal pitfalls. For example, renters are not allowed to use any type of self-help to remove an overdue tenant from the premises. Additionally, accepting less than the full amount owed or accepting the payment late may cut off certain legal remedies.
Taking your case to court
If the three day period expires and you still have not received payment, an Orange County eviction attorney from Schiff & Shelton can prepare your âunlawful detainerâ case. Your attorney will file a complaint with the court and serve the tenant. If the tenant files an answer, your case will proceed to trial; otherwise, a default judgment will be entered in your favor. Once you win at trial, the court will issue a âWrit of Possessionâ and direct the sheriff to lock the former tenant out of the property.
The eviction process can be long and expensive, and attempting to handle the case personally may lead to costly and irreversible legal mistakes. The law offices of Schiff & Shelton are ready to represent you at every stage of your proceeding. Call (949) 417-2211 today for a consultation.
Schiff & Shelton, Attorneys at Law
3700 Campus Dr, Suite 202
Newport Beach, CA 92660