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Unlawful Detainer (eviction) Overview

Unlawful Detainers (evictions) are used when a landlord wants to get tenants out of a rental property -- residential or commercial. Only a sheriff can evict someone.  Even if a tenant is months behind on rent, the landlord can't evict the tenant or get rid of the tenant's things. The landlord must get a court order for the sheriff to do this.

To legally evict a tenant, the landlord must:

  1. Serve the tenant with a notice
  2. Wait for the notice to end
  3. File an Unlawful Detainer action if the tenant doesn't do what the notice asks.

If the tenant does not answer the unlawful detainer:

If the landlord files an Unlawful Detainer with the court, the tenant has five days to answer.  If the tenant does not do this, the landlord can file for a default judgment and automatically get what the landlord asked for.  The tenant may file an Answer after the five days if the landlord has not already filed for default.

If the tenant answers the unlawful detainer:

If the tenant files an Answer, the landlord must ask for a court date. Court dates are made within twenty days so that there can be a speedy resolution to the issue.

Stay of execution:

If the landlord wins and the tenant must move out, the tenant may be able to get more time before s/he has to go by filing a "Stay of Execution."  This allows the tenant to stay for up to 41 additional days, as long as s/he can pay the rent for the extra time in advance.

To legally evict someone, a landlord must: (Starting an Unlawful Detainer)

  • Serve the tenant with notice
  • Wait for the notice to end
  • File an Unlawful Detainer if the tenant does not do what the notice asks.

Notice

There are several types of notice in an unlawful detainer case.  The most common two are:  

  1. 30-day notice:  Use this in most cases.
  2. 3-day notice to pay or quit:  Use this if the tenant is behind on rent.  If tenant pays, then they will get to stay in on the property.

Sometimes you can use more than one notice.  For example, if your tenant is always late with the rent, you can serve a three-day notice to pay rent or quit and a 30-day notice to quit.  Then the tenant has three days to pay or leave.  But even if they pay, they have to leave in 30 days. If the tenant doesn't pay, you can file your unlawful detained after three days.  If they pay in 3 days, you have to wait 30 days to file the unlawful detainer.

Serving the Notice

Someone other than the landlord, over the age of 18 must serve the notice.  There are three ways to serve the notice:

  1. Personal Service - the notice is given to the person (s) to be evicted in person.
  2. Substitute Service - If the tenant is not at their normal home or work, you can leave a copy with a person over the age of 18.  You must then also mail a copy to their home.
  3. "Nail and Mail" - If you don't know where the tenant lives or works, or can't find someone over the age of 18 to give a copy to, you can
  • attach a copy in a place where it can be seen easily
  • Give a copy to the person who lives there, if you can find one
  • Send a copy by mail to the property.  Write the name of the person you want to evict on the envelope.

If at the end of the notice period the tenant has not done what was asked (vacate the property or paid the rent) the landlord must file an unlawful detainer.

 

Legal Services of Northern California offers free and low cost assistance, specializing in Landlord/Tenant disputes. (530) 823-7560.

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