As a landlord, sooner or later you will undoubtedly be faced with a tenant that does something warranting an eviction. In some instances, eviction might seem harsh, but if a tenant is say, not paying rent, it might ultimately be what you have to do.
Regardless of why you might need to evict a tenant, before starting the process, you should have a working knowledge of the reasons you can evict as well as the rules and procedures that govern eviction in your state. Eviction laws are very state-specific and a landlord can face serious liability for failing to follow local and state laws when evicting a tenant. It is also a good idea to know the rules and consider them when writing up a lease agreement, as there are provisions you can include in the lease that can make eviction easier on you if it ever comes to that. (It is best to consult an experienced attorney when creating a lease but you can find lease forms written by attorneys online, such as at US Legal Forms.)
Legal reasons for eviction
The following are some examples of lawful reasons to evict a tenant:
- Failure to pay rent.
- Having a pet in violation of the lease agreement.
- Damaging the unit or common areas.
- Committing a crime on the property.
- Causing harm or safety risks to other residents.
- Violating no smoking policies, including marijuana.
- Failure to pay association dues.
- Regularly violating an enforceable term in the lease agreement (e.g. repeated noise violations; unapproved subleasing).
On the flip side, there are many illegal reasons for eviction that violate a tenant’s rights and if you are caught illegally evicting a tenant you could face civil penalties. For example, you may not evict a tenant because he has become disabled. You may also not evict a tenant who has a support animal, even if there is a no pets policy. And obviously, eviction on the basis of race, gender, religion, age, marital status or any other protected class is prohibited under the Fair Housing Act.
Understand the eviction laws in San Diego
You must follow the proper channels to evict. “Self-help” evictions are illegal in San Diego. No matter how egregious your tenant’s behavior you CANNOT do any of the following without a Court order:
- Remove the tenant’s stuff from the property.
- Remove the tenant by forcibly carrying him out.
- Change the locks or lockout the tenant.
- Remove windows or doors.
- Shut off essential utilities (electric, gas, water, etc).
- Harass the tenant until they leave.
Steps to evict
Understand that the eviction process is not quick and can be costly. The steps in the eviction process are:
- give the tenant proper notice;
- file for eviction and attend a hearing to obtain a court order for eviction;
- the tenant moves out, either voluntarily or involuntarily.
1. Delivering proper notice of eviction
It may sound odd, but there are constitutional protections for tenants when it comes to eviction notices. Based on decades of court decisions and law interpretation, the Due Process Clause is applicable to landlord-tenant conflicts. Because of this, tenants are owed at the very minimum proper notification of impending eviction and notice can make or break the eviction process.
Proper notice depends on the reason for the eviction. For instance, if eviction is necessary due to unpaid rent you are required to give the tenant 3 day to deliver full payment before eviction in San Diego (see (Cal. Code of Civ. Proc. § 1161(2)). Similarly, when a tenant has violated a material term of the lease, such as keeping a pet, you must provide “cure or quit” notice that allows the tenant 3 days to “cure” the problem (see Cal. Code of Civ. Proc. § 1161(3)) before being evicted. It is a good idea upon move-in to review the lease agreement with your tenant so you are both aware of the provisions that can result in eviction.
Some acts are so egregious that you can give an unconditional eviction notice. Unconditional (or holdover) evictions do not allow the tenant to correct the problem and give the tenant 3 days to move out (see Cal. Code of Civ. Proc. § 1161(4)). This type of eviction is available in most states but is only enforceable in the most serious situations. For instance, in California you may only use the Three-Day Unconditional Quit Notice in the following situations (Cal. Code of Civ. Proc. § 1161(4)):
- the tenant has assigned or sublet the rental unit in violation of the lease or rental agreement,
- the tenant has caused substantial damage to the property,
- the tenant has permitted or created a nuisance at the rental unit, or
- the tenant has been involved in illegal activity on the premises of the rental unit.
Regardless of the type of notice required, it is a good idea to also include and do the following in your notice:
- include a deadline (date) to pay rent or move out or cure or quit;
- if the eviction is for the failure to pay rent, include the amount owed, including all fees;
- check local and state laws to comply with the posting requirement;
- tape the notice to the front door and send it certified mail, return receipt requested via the U.S. Postal Service;
- use a state-specific eviction form template.
2. File for and go to court for the eviction
After you have complied with the notice requirement you must file the eviction with the court. For evictions in California you file what is called an “unlawful detainer” lawsuit with the Superior Court. An unlawful detainer lawsuit is a “summary” court proceeding meaning the court moves very quickly compared to other types of lawsuits. Typically the tenant will be given a very short amount of time to respond (usually around 5 days) after being served with the summons and complaint. If either the landlord or tenant requests a hearing it will typically be scheduled within 20 days of that request.
Before attending court for the eviction you will want to gather up as much evidence as you can. This includes lease agreements, bounced checks, records of payments, a copy of the written eviction notice you provided your tenant, and the dated proof from the post office that your tenant received (or refused) that notice. (Proof that you provided adequate notice is crucial because more often than not a tenant will not have a viable defense to eviction other than a lack of proper notice.)
If the judge finds in favor of the tenant he will not be required to move out and you, the landlord, may be ordered to pay the tenant’s filing fees and possibly his attorney’s fees if there is such a provision in the lease. If the judge finds in favor of you, the landlord, the court will issue a “writ of possession”, which orders the sheriff to remove the tenant from the property if he does not voluntarily leave within 5 days of the writ issuing.
If the eviction was for unpaid rent the court may also award that unpaid rent as well as court costs and attorney’s fees if there was such a provision in the lease. In California, if the court finds the tenant maliciously failed to relinquish the property the court may award up to $600 as a penalty. The Court will then issue a judgment specifying the monies owed, which allows you to collect the money awarded via wage or tax refund garnishments or other property attachments. The judgment will also be reported to the tenant’s credit report for 7 years.
3. Remove the tenant from your property
If you win at court your tenant will have a set amount of time to vacate the property, which can range from 48 hours to a week, depending on the locale. Hopefully, your tenant will simply leave on his own but legally, once a valid eviction has occurred and after the final day of the correction period passes the tenant becomes an illegal trespasser and may be physically removed by local law enforcement.
If you want to avoid the eviction process, try reasoning with your tenant.
If you are unsure that the law is entirely on your side or you simply do not want to go through the cost and hassle of the courts, you might contact your tenant and appeal to their reasoning before initiating an eviction. Call your tenant or meet with them in a public place and have a frank, but understanding conversation with them.
For instance, if the issue is the non-payment of rent, address it head-on with them and give them a chance to leave on their own before you file an eviction. Explain that your property is your business and that you must have someone in the unit that can pay the rent. Make sure they understand that an eviction can ruin their credit score and that if you win the eviction and obtain a judgment for back rent you might be able to garnish their wages. Let them know that you do not want to resort to those measures and give them an opportunity to leave on their own.
Some landlords go further and offer “cash for keys” where they give the tenant money to leave so they do not have to go through the costly and time-consuming process of eviction. Although it might sound crazy to pay someone who has not been paying you it boils down to the fact that the time and cost to evict a tenant is sure to end up costing you a lot more than the amount of back rent you are owed and the costs of any damage they might do to your property if you evict them. Paying a deadbeat tenant a small amount of money to voluntarily vacate might be a good business decision that results in a smaller loss to you in the end.
If you decide to try “cash for keys” follow these principles
- Explain to the tenant in detail what they must do before moving out (e.g. the unit must be move-in ready so they must clean it).
- Give the tenant a specific move out date, no greater than four days out.
- Give a three-day notice to pay or vacate, just in case you have to evict them. (see Notice requirements above)
- Do NOT give them the money until they are moved out and have turned over the keys.
- Meet the tenant at the property upon move out to ensure the unit is up to your move-in ready standards.
- Do not meet them alone; bring a friend. If the tenant has held up their end of the bargain have them sign and date a document saying they relinquish their tenancy effective immediately. Give them cash in the agreed upon amount.
The following is not a substitute for legal advice and should not be construed as such. When it comes to evictions your best bet is to consult with a licensed, experienced landlord-tenant attorney, especially if you have never been through the eviction process.