Ending a tenancyIn California, a landlord may be able to evict a tenant if the tenant:
- Fails to pay the rent on time;
- Breaks the lease or rental agreement and will not fix the problem (like keeping when pets are not allowed);
- Damages the property bringing down the value (commits "waste");
- Becomes a serious nuisance by disturbing other tenants and neighbors even after being asked to stop; or
- Uses the property to do something illegal.
- If the tenant stays after the lease is up,* or
- If the landlord cancels the rental agreement by giving proper notice.*
*If your city has rent control, these 2 reasons may not be good enough to evict a tenant. Most rental units in California are not rent-controlled. But if the unit is in a city with rent control, there usually are more protections in place for tenants that you need to know. The best way to find out if rent control applies to a unit is to check with the local city or county government, planning and zoning department, or with the local legal aid. self-help center. or law library. Or, click to find out if the property is in a rent-controlled area .
To Evict a Tenant
Landlords must follow a series of steps in order to legally evict a tenant. This is true whether the lease or rental agreement is in writing or was a verbal agreement.
First, the landlord gives the tenant written notice. If the notice allows the tenant to correct the problem, such as to pay the back rent or to remove a pet, the landlord can only evict if the tenant does not do what the notice asks. If the notice is not correctable, such as a 30- or 60-day notice to move out in a month-to-month tenancy, the landlord can file an unlawful detainer case in court when the notice period ends. Unlawful detainer is the legal name for an eviction.
If the landlord has followed all the proper procedures, and the tenant either does not answer the court papers, or the tenant answers but the court decides in favor of the landlord, the court will order the sheriff to evict the tenant. If the court decides for the tenant, the tenant will get to stay.
It is against the law for landlords to evict tenants on their own, without going to court AND getting a court order directing the tenant to move out.Even if the tenant is months behind on the rent, without a court order the landlord cannot:
- Physically remove the tenant;
- Get rid of the tenant's personal property;
- Lock the tenant out;
- Cut off the utilities, like water or electricity;
- Remove outside windows or doors; or
- Change the locks.
The unlawful detainer process
The court process of an unlawful detainer (eviction) usually takes about 30 days. The tenant has 5 days to file a response after being served with the landlord's lawsuit. Then, the court clerk will schedule a trial within 20 days of the landlord's request. The trial usually takes less than an hour (but it could take longer).
If the landlord wins, the tenant usually has about 5 days to move out. It depends on how fast the sheriff posts the property with the lock-out order. The lock-out order will allow the sheriff to lock the tenant out if the tenant does not leave the premises with his or her belongings within 5 days of the posting.Unlawful detainers should not be used where:
- A tenant wants the landlord to fix something in the apartment;
- A tenant moved out but still owes the landlord for unpaid rent or damages;
- There are disputes about fraud in the property's ownership; or There is a dispute about the security deposit after the tenant moves out. Find more information on security deposits .
Most of these cases, except for those involving property ownership disputes, are handled in small claims court. For more information, read the Small Claims section.
Evictions can be complicated. The landlord and tenant do not have to get a lawyer. But there are strict laws and court rules, as well as forms you have to fill out, file, and serve. The rules and forms are complicated. And if you do not do things correctly, you may lose your case. Also, there are some cities that have special rent control laws that can complicate your case.
The court cannot appoint a lawyer for you in these types of cases. But there may be other places in your county, like legal aid. eviction clinics, or the court's self-help center. where you can get help, or you can hire your own. Click for help finding a lawyer .
Avoiding problemsThere are many things landlords and tenants can do to avoid problems:
- Make sure the lease or rental agreement is clear for both the landlord and the tenant.
- Conduct a walk-through of the property before moving in and again when moving out. Complete a checklist of any defective items and have both the landlord and tenant sign the list. Click for a checklist form you can print out and use .
- Take pictures of the condition of the premises when you move in and when you move out.
- Communicate professionally and openly. If there is a problem, try to talk it out.
- Confirm all verbal agreements in writing.
- Keep copies of all letters between you.
- Keep notes about conversations you have about repairs or other problems and the dates of the conversations.
- The landlord should keep a record of all repairs, including the date repairs were requested and completed.
- Know and understand your responsibilities as a landlord or a tenant. Click for more information from the Department of Consumer Affairs .
- The outside walls, windows and doors protect you against water or weather.
- The plumbing and gas fittings work properly.*
- There is hot and cold running water, appropriate fixtures, an approved sewage system, and the water supply is not contaminated.*
- There is a working heater.
- There is adequate lighting and electrical wiring that meets safety standards.*
- The premises and common areas must be clean and free from pests.
- There are adequate garbage containers.
- The floors, stairways and railings are not broken.
*The landlord must meet the standards in effect when installed as well as current building and house code standards. For more information, read California Civil Code section 1941 .Tenants must:
- Keep the rental unit clean.
- Dispose of trash in a sanitary manner.
- Operate electrical, gas and plumbing fixtures properly.
- Not damage or remove any part of the rental unit, its facilities, or equipment.
- Use the rental unit as a home and live, sleep, cook and dine in the intended areas.
There are several special situations in eviction situations where special rules may apply.
If the tenant works for the landlord and lives on the property
If the tenant works for the landlord and lives on the property without paying rent as a condition of employment, the landlord can file an unlawful detainer if the tenant no longer works for the landlord. It does not matter if the tenant quits or is laid off.
If the tenant lives in a residential hotel that has 6 or more rooms for 30 days or more and the hotel is the tenant's primary residence, the tenant has the same legal rights as a regular tenant. The manager is not allowed to make the tenant check out and reregister to prevent him or her from gaining the legal rights of a tenant.
If the tenant lives in a mobile home or RV park
There are special rules for tenants in mobile homes and RV parks.
For more information read mobile home tenants .
For more information read RV park tenants .
If the tenant lives in a tax credit unit
There are special eviction rules for tenants who live in tax credit units. The landlord must give the tenant an explanation for ending the landlord-tenant arrangement, and he or she must have a good reason ("just cause") for eviction. To find out if the unit is a credit unit, look for the property at the California Tax Credit Allocation Committee website.
If there is a foreclosure on the rental unit
The new owner must honor the existing lease. BUT in a month-to-month tenancy or when the people occupying the property are the owners who are being foreclosed on, the new owner can evict the tenants or former owners. In these cases, the new owner may either (1) offer the existing tenants a new lease or rental agreement or (2) begin eviction proceedings. If the new owner chooses to evict existing tenants, the new owner must give tenants at least 90 days' notice before starting eviction proceedings, unless the tenants are the former owners, in which case a 3-day notice is required.
Tenants in some California cities may still have a right to stay in their buildings. Cities with eviction or rent control laws prohibit new
owners from using foreclosure as a reason for evicting tenants. Find out if the property is in a rent controlled area.
There are other rights that tenants and occupants have in eviction cases done after a foreclosure. If an occupant is not named in the complaint for the eviction, he or she may be able to challenge the eviction at any time during the case or even after the judgment for eviction is made.
For more information, talk to a lawyer or a legal aid office. Tenants may also call the Tenant Foreclosure Hotline at 1-888-495-8020. And tenants can also get more information about their rights and find resources at Tenants Together's Law & Resources. For more details on the laws protecting tenants in foreclosures, read the Reforms for American Homeowners and Consumers.
Resolving the Dispute Out of Court
Mediation can often be a very good choice for landlords and tenants who have a dispute. In mediation, both sides meet with a neutral person who is specially trained to help people resolve their disputes. In mediation, everyone works together to reach an agreement, instead of having the judge or jury make a decision. If the parties fail to reach an agreement, they can still go to court for a judge or jury to decide their case. Click to watch a video about resolving an eviction case without going to court (also available in Spanish and Russian ).
Many landlord-tenant disagreements can be due to misunderstandings. There may be disagreement over a rent increase, responsibility for repairs, or return of a security deposit. Some of these disagreements can be solved by talking them out.
Mediation is also a valuable resource in eviction cases. It can save the landlord AND the tenant time and money, help the parties agree if and when the tenant will move out or pay the landlord money, facilitate agreements to make repairs to the property, and protect the tenant from getting an eviction judgment on his or her record.The landlord and tenant can:
- Try to work out an agreement on their own, or
- Ask a neutral person (mediator) to help them.
A mediator helps the landlord and tenant to come to a mutually agreeable solution. The process is less hostile than going to court. The mediator will not force you to reach an agreement. Whether you decide to resolve your dispute, and how you resolve it, is up to you. If you cannot settle, you can still go to court to have judge or jury decide. There is nothing to lose by trying mediation, and there is a lot to gain.
Note: Click to watch a video on Resolving Your Unlawful Detainer (Eviction) Case (also available in Spanish and Russian) with the help of mediation.
Why mediation makes sense in eviction casesThere are a lot of reasons why it is a good idea to mediate your dispute, whether you are the landlord or the tenant.
- Unlawful detainer trials are difficult to do without a lawyer. You need to know the law AND follow the rules of evidence. In mediation, you are not limited by the rules of evidence and other strict legal requirements. Also, mediation allows you to talk about other issues that may not be directly related to the law but are very important to you and how you feel about the dispute.
- Both sides must agree on the outcome in mediation, and it is typically more satisfactory to all parties involved. These agreements are often more likely to be followed than a court order that is imposed by a judge.
- If the landlord and tenant settle the unlawful detainer case through mediation with a written settlement agreement, and they agree that the case will not be reported to credit reporting agencies, it will not appear on the tenant’s credit report, even if the tenant agrees to move out or pay the landlord money. But if the agreement says that the eviction can be reported on the tenant’s credit report, then it may appear.
Common Agreements in Unlawful Detainer CasesThe parties may settle eviction disputes in many different ways, depending on what is important to them. For example, they may agree that:
- The tenant may continue to live in the property but pay for costs related to late payment of rent;
- The tenant will move out of the property on an agreed date and leave the property in good condition;
- The tenant will make back rent payments to the landlord/owner;
- The landlord will make repairs to the property;
- A judgment will not be entered against the tenant if he or she complies with the agreement; or
- The unlawful detainer case will not appear on the tenant’s credit report.
Preparing for mediation
Preparing for mediation is a lot like preparing for your trial. It is important to identify and organize the facts that are relevant to your dispute and understand the law that applies to your case. And you should make sure you know about the facts that support the other side, not just those that support you.If you are going to mediation before or instead of trial, there are some other things you should do to prepare.
- Be realistic about how the judge will decide your case if you have to go to court. If possible, talk with a lawyer who can give you advice about how a judge would decide.
- Think about whether you or the other party has angry or hurt feelings, and why.
- Consider what you and the other party would really like to accomplish through the case.
- Think about whether something beside, or in addition to, staying in or moving out of the property might help to satisfy you or the other party.
- Decide what conditions you would be willing to accept to avoid going to a trial, to avoid the possibility of losing, or to avoid the possibility of delays and not collecting any owed money if you win.
At the mediation
At the mediation meeting be sure to present your side of the dispute clearly and listen carefully to the other side’s point of view. Have your suggestions for settlement prepared, but also listen to the other side’s proposal and be open to other ideas. Remember that for mediation to work there must be a give and take. There are 2 sides to every story, and although you may feel like you are 100 percent right, you may learn things from the other side during the mediation that make you realize that the blame is not entirely theirs.
If your mediation is successful and you are able to reach an agreement, you will be much more satisfied with the process. You will find that you are less frustrated about what happened, and more empowered, because you were able to resolve your dispute to your satisfaction without needing to have a judge decide what is best for you.
If the landlord and tenant reach an agreement
Sometimes, the tenant agrees to move out and just needs more time to find housing. Or the tenant is willing to make the changes the landlord asked for and the landlord is also willing to do what the tenant asks.
If the landlord has not filed an unlawful detainer case yet, then both can write up the agreement clearly and make sure everyone understands what to do.
If the landlord has already filed a lawsuit, the landlord and tenant should write up an agreement, called a "stipulation," to file with the court.
You can write up your own agreement, or you can use the Stipulation for Entry of Judgment-Unlawful Detainer (Form UD-115 ). This form tells the court the exact terms of the agreement.Make sure the agreement or stipulation says:
- What each side is promising to do (like pay the back rent, fix something that is broken, or move out);
- By what date each side has to do his or her part of the agreement;
- By what date the landlord will dismiss the case if the tenant follows the agreement;
- That if the tenant does not do what he or she agreed to do, the landlord can get an eviction order from the judge right away; and
- What the tenant can do if the landlord breaks the agreement.
If the landlord and tenant cannot agree
There will be a trial and the judge will make the decision. The court order will always say whether the landlord gets the property back. It can also include an order for back rent, lawyer and court costs, and in some cases, statutory damages of up to $600 if the judge finds that the tenant purposely stayed on the property after the notice to leave in order to hurt the landlord.
Finding a mediator
Many counties have nonprofit dispute resolution programs that provide free or low-cost mediation before or after a lawsuit is filed. To find a program near you, ask your court for a list of mediation programs in your area. Some courts offer free or low-cost mediation either before the trial or on the day of the trial. Private mediators are available in many communities, and they often advertise in the Yellow Pages or legal newspapers, or on the Internet. Their backgrounds and fees vary considerably, so be sure to ask!Source: www.courts.ca.gov