How to Evict Your Tenant: Step One, The Eviction Notice

How to Evict Your Tenant: Step One, The Eviction Notice

Being a landlord is a mixed bag. It can be a wonderful investment when things go well; but if you are reading this, chances are you've realized it can quickly turn into a costly nightmare. In this guide, you will learn the basis steps for evicting your tenant with the least amount of risk. This guide should only be used for residential landlord-tenant disputes because commercial leases are usually more complicated. It is also not intended to provide guidance on rentals subject to rent control ordinances or government subsidized housing. If you have any questions about these or other matters, contact Ridgeway Law for a free consultation. 

I. Take a Breath, Think, and Communicate.

Planning ahead is critical when dealing with potential legal disputes. First and foremost, you need to think about who you are dealing with, why they might be giving you trouble, and consider the risks. For example, is your tenant a bad apple, or are you just dealing with someone who is down on their luck and temporarily can't make rent? Depending on where you live, and whether the tenant decides to oppose the eviction, it could take several months just to force them out. Giving a tenant some leeway on repaying past due rent is sometimes the simplest answer. Sometimes being too aggressive with a tenant can be more trouble than it is worth. The last thing you need is a rogue tenant calling the City's Code Enforcement Department or suddenly developing a health condition because of a little mold. As with most things in life, a little compassion can go a long way (assuming it is warranted, of course). 

As a side note, try to summarize verbal discussions with your tenant in writing and take good notes. If a verbal agreement is reached, write a simple letter summarizing the discussion and agreement and end it by asking the tenant to inform you, in writing, if anything in the letter differs with their understanding.

II. The "Eviction Notice"

If you can't work out your problems informally, it is time to start the eviction process. That technically starts with serving the tenant with a formal notice that you intend to file a lawsuit to evict if s/he does not leave. The type of notice you must serve depends on the type of tenant and the reason you are trying to evict. The following categories will tell you which notice to serve. Caution: this is a critical step in the eviction process. If you do not do this correctly, you will probably lose your case and waste considerable time and money. If you are not sure which notice to serve, or whether you have the proper format and content, contact Ridgeway Law for a free consultation. 

A. The 3-Day Notice: There are three main reasons a landlord serves a 3-day notice: (1) unpaid rent; (2) a serious violation of the lease (eg., subletting without permission); or (3) illegal use of the premises (such as selling drugs, prostitution, etc.). The notice must contain specific language required by the California Civil Code, but generally tells the tenant s/he must, within 3 days, comply with the terms of the lease, or vacate the premises. If the tenant has done neither after 3 days, you can file your eviction lawsuit. Caution: If you are serving the notice for unpaid rent, you will have to state the amount of rent due and the month(s) for which rent has not been paid. Do not overstate the amount of rent due in the 3-day notice! If you do, the notice is void as a matter of law, and you will lose your eviction case. Also, do not include late fees, penalties, or interest in the 3-day notice. Only include the amount of past due rent at the time the notice is served. 

B. The 30/60 Day Notice: A 30 or 60 day notice is required if you want the tenant to move out, but the tenant is not in violation of the lease or committing a nuisance or illegal act on the premises, and if the lease is of an "indefinite term" (which usually means month-to-month). A 30-day notice is used if the tenant has been living there for less than a year. A 60-day notice is required if the tenant has been living there a year or longer. 

C. Serving the Eviction Notice: You have to serve (i.e., deliver) the notice with strict adherence to one of three authorized methods. These are:

  1. (1) Personally delivering the notice to the tenant;
  2. (2) Leaving a copy of the Notice with someone at the residence who is 18 years of age or older and that same day mailing (ideally by certified mail, return receipt requested) the Notice to the residence; or
  3. (3) If the tenant or someone over 18 cannot be located, by affixing a copy of the notice in an obvious place on the residence (like the front door) and mailing the Notice to the residence (again, certified mail with return receipt is ideal). 

     Tip: If you can afford it, hire a registered process server to serve the 3, 30, or 60 day notice. It typically costs between $50-$100. A proof of service signed by a registered process server                         is presumptive proof that the notice was properly served. If you or a friend serve the notice, you will have to prove it was correctly served it at the time of trial in order to win your eviction                   case. Improper service of the notice is a very common defense used by tenants in eviction cases, and can lead to the tenant prevailing if the landlord is not careful. 

III. The Notice Period: If you served a 3-day notice, you have to wait a full three days before moving to the next step, which is filing an eviction lawsuit (or "Unlawful Detainer"). During those three days, the tenant must either pay all rent due (if the notice is based on non-payment of rent) or correct whatever behavior that led to you serving the notice to begin with (which is called "curing" the default). Some things are not capable of being cured, however. For example, you do not have to take the tenant's word for it that s/he has stopped selling drugs out of the rental during the 3-day notice period. For serious illegal conduct like that, you just have to wait the three days and then file your eviction case if the tenant has not vacated. If you have questions about whether you have a duty to allow the tenant to fix the problem giving rise to a 3-day notice, call Ridgeway Law for a free consultation. 

If you served a 30 or 60 day notice, you similarly have to wait the entire 30 or 60 days before filing your eviction lawsuit (assuming the tenant has not vacated, of course). There is no cure period because an eviction based on a 30 or 60 day notice is not an eviction based on a violation of the lease or the law. You can continue to collect rent during the 30 or 60 day period. If the tenant stops paying rent, you can serve a 3-day notice, wait out the rest of the 30/60 day notice period, or both. Doing both is appealing because you will have two separate grounds for evicting the tenant: non-compliance with a 30/60 day notice to quit and non-payment of rent. 

IV. Tenants Living in the Same Residence as the Landlord: Special rules apply where the tenant is renting a room in the same house where the landlord resides. Tenants in these sort of rentals are called "lodgers." Evicting a lodger is somewhat easier than evicting someone from a typical rental. To evict a lodger, the landlord will follow the same basic steps as detailed above, but instead of filing an eviction lawsuit, the landlord can have the lodger removed by calling the police or sheriff's department and letting them know the lodger is not complying with a notice to evict in violation of Penal Code Section 602.3. Landlords can also use reasonable force to evict the lodger, but this is strongly discouraged. You should not use force to remove a lodger without first speaking with an experienced attorney. You should also never use force to evict a lodger without first calling law enforcement and telling them what you are about to do. If law enforcement tells you not to use force to evict the lodger, don't do it! 

DISCLAIMER: The information provided on this website is for general informational purposes only and should not be construed as giving rise to an attorney-client relationship. While the information provided is of a legal nature, it should not be construed as legal advice for your particular benefit and use. Although the information in this guide is accurate to the best of our knowledge at the time it was originally posted, Ridgeway Law does not guarantee its accuracy. Questions about this content's applicability to your particular case should be directed to Ridgeway Law or a lawyer of your choosing.