The Critical First Steps to Initiating an Eviction Proceeding
Considering COVID-19, the State of California has issued a public moratorium on eviction proceedings, which continues to this day, and no one really knows when it will be lifted. That said, landlords are still allowed to start the eviction process (aka Unlawful Detainer). When an Unlawful Detainer trial can occur will most definitely be months, maybe even a year away in light of the current global pandemic. Even though there will be a delay, landlords must still follow important rules prior to initiating an Unlawful Detainer proceeding.
Step One: The Different Types of Notice
A. The 3-Day Notice to Pay Rent or Quit
This type of notice is used when the tenant is behind in rent. This notice must be (i) in writing, (ii) state the full name of the tenant(s), (iii) state the address of the rental property, (iv) state exactly how much rent the tenant owes (*the notice cannot go back more than one year, even if the tenant owes back rent for a longer time, and the notice cannot include any amount other than back rent, such as late fees, utilities, damages, etc.), (v) state the dates the overdue rent is for, (vi) state the rent must be paid in full within three days of receiving the notice or the tenant must move out (do not count weekends or court holidays as part of the three days), (vii) state the days and times the tenant can pay the rent owed, and the address where the tenant can pay it, and (viii) state the address where the tenant can pay the back rent by mail, and give the address the tenant can send the money to.
B. The 3-Day Notice to Perform Covenant(s) or Quit
This type of notice is used when a tenant has violated terms of a lease and the issue can be fixed. For example, the tenant is not allowed to have pets, but the landlord discovers the tenant has three pet snakes or is violating some other terms of the lease. In this instance, the notice must be (i) in writing, (ii) state the full name of the tenant(s), (iii) state the address of the rental property, (iv) state what the tenant did to violate the lease, and (v) state the tenant can fix the issue or move out in three days (not counting weekends or court holidays).
C. 3-Day Notice to Quit
This type of notice is used when there is an ongoing problem with the tenant. For example, the tenant does something illegal (i.e., sells drugs), sublets without permission, causes a nuisance, or threatens other tenants or the public at large. This notice must be (i) in writing, (ii) state the full name of the tenant(s), (iii) state the address of the rental property, (iv) state what the tenant did to violate the lease or deserve the three-day notice to leave with details and dates, and (v) state clearly the tenant has three days to move out.
D. 30-Day or 60-Day Notice to Quit
The 30-day notice is used to end a month-to-month tenancy if the tenant has been renting for less than a year. The 60-day notice is used if the tenant has been renting for one year or more and the landlord wants the tenant to move out. This notice must be (i) in writing, (ii) state the name of the tenant(s), (iii) state the address of the rental property, and (iv) state that the month-to-month tenancy will end in 30 or 60 days depending on the type of notice being provided.
E. When Notice is NOT Required
There are a few exceptions when notice is not required.
1. The Fixed Term Lease Expires and the Landlord Accepts No Further Rent
If the tenant has a fixed term lease (i.e., one year), the lease expires, and the landlord does not extend it, the landlord can file an Unlawful Detainer complaint without giving notice. It is important for a landlord to not accept any rent from a tenant post-lease expiration as such an act will create a month-to-month tenancy, which will require a notice.
2. The Tenant Gives Notice and the Landlord Accepts
If the tenant gives notice that he/she is moving out, and then does not, the landlord can initiate an Unlawful Detainer proceeding without providing notice.
3. The Tenant Works for the Landlord and Lives on the Premises as Part of the Job
Once the tenant stops working for the landlord, the landlord can initiate an Unlawful Detainer proceeding without giving notice.
Step Two: Give Proper Notice
An Unlawful Detainer proceeding has no chance of success if proper notice is not provided to the tenant. This can be done by the landlord, a friend, or a retained process server for a fee as long as these respective persons are above 18 years of age. Notice can be personally delivered to the tenant in person. If the tenant is not home, notice can be left with a member of the household who is at least 18 years old and the notice must also be mailed to the tenant at the property address. Another option if the tenant is not home is taping/nailing the notice to the front door where it can be easily seen and also mailing a copy of the notice to the tenant at the property address.
Step Three: After Notice is Given
Once the landlord has properly provided notice to the tenant, the landlord must wait until the notice period ends to see if the tenant has complied. If the tenant has not, the landlord can proceed with an Unlawful Detainer proceeding. If the tenant does comply, the landlord cannot proceed further with an Unlawful Detainer proceeding.
Only when the notice period ends is the landlord allowed to file an Unlawful Detainer complaint. If the complaint is not timely filed, the court will dismiss the case, and the landlord will have to start over.
Notice is counted the first day after the notice is served, and then every subsequent calendar day, except weekends and court holidays, for 3-Day Notices to Pay Rent or Quit and 3-Day Notices to Perform or Quit.
Step Four: File and Serve the Complaint
If the landlord follows the rules listed above, an Unlawful Detainer complaint can be filed with the local court. The usual package to initiate a lawsuit includes the following Judicial Council of California court forms: Summons (SUM-130), Complaint (Form UD-100), and Civil Case Cover Sheet (Form CM-010). Depending on the location of the subject court, there may be additional local court forms that are required as well. Please check with the court clerk’s office to make sure all the required paperwork is submitted for filing.
Once the Complaint and initial pleadings are filed, the landlord must properly serve the Summons and Complaint on the tenant. If the tenant is personally served, the tenant has five days to respond, excluding weekends and court holidays. If the tenant was served by substituted service or “post and mail,” the tenant has 15 days after the date the server mailed the court papers to file a response.