WORD OF THE DAY

June 9, 2023

Eviction

DEFINITION

The process of removing a tenant or former property owner.

EXPLANATION

Eviction occurs when a landlord expels a tenant from a property.

The following are valid reasons for a landlord to evict a tenant:

Failure to make timely rental payments

Violating the terms of the lease (i.e. engaging in criminal activity, keeping pets when it is not permitted)

Disturbing other tenants’ right to quiet enjoyment

Endangering other tenants and/or guests

Damaging the property

Due to the sustained loss that eviction can have on a landlord and/or a tenant, and the possibility for escalation, California prioritizes eviction cases over almost all other types of cases (except criminal cases).

Eviction Process

California law strongly protects the interests of tenants. Therefore, a landlord does not have the legal right to forcibly remove a problem tenant. Rather, there is a strict eviction process to which a landlord must adhere.

The steps in the eviction process are:

Landlord provides tenant with a “Cure or Quit” notice

Landlord files an unlawful detainer lawsuit against tenant

Court issues a writ of possession

In order to initiate the eviction process, a landlord must provide a tenant with a proper notice. This notice is known as a “Cure or Quit” (or “Pay Rent or Quit” or “Vacate or Quit”). The notice is used to inform a tenant that a lease violation has occurred and that an eviction is imminent unless the tenant corrects his or her actions.

In California, it is common practice for a landlord to give a tenant a three-day notice. If a tenant does not correct his or her actions within those three days, or fails to respond, the landlord can file an unlawful detainer action with the Superior Court in the property’s jurisdiction.

An unlawful detainer action is a court hearing where a landlord and a tenant have the right to present their cases in front of a judge. A judge will typically hear an unlawful detainer case within 20 days of a landlord’s application. The tenant must respond to the detainer within five days or risk losing the hearing by default.

It is the responsibility of the landlord to prove that a tenant violated the specifics of the lease agreement and should therefore be evicted. If a landlord is unable to prove grounds for eviction, a court will likely rule in favor of a tenant. In that case, the landlord may be responsible for covering the tenant’s attorney fees and court costs.

If a tenant is found guilty, the court will issue a writ of possession. A writ of possession grants a landlord the ability to evict the tenant and orders a guilty tenant to vacate the property. A tenant has five days to vacate the premises after a writ of possession is issued. If a tenant fails to do so, local law enforcement may be called in to remove the tenant. Local law enforcement also has the right to seize a tenant’s personal property. If a landlord is forced to go to such lengths to evict a tenant, a judgment will be placed on the tenant’s credit.

Notice to Tenant

Before starting the eviction process, there are legal steps a landlord must follow for the eviction to be valid. The first step is to provide some written notice three days in advance, formally called the notice to pay rent or quit to the tenant. The notice should include the landlord’s reasoning as to why the tenant is in violation of the lease agreement, in addition to a request for the tenant to bind their portion of the lease agreement.

Requirements of the Notice to Pay Rent or Quit

Must be in writing

Must provide the name of the tenant as it appears on lease agreement

State the exact address of the rental property

Provide the amount the tenant owes. This includes how many days or months the tenant is behind, in addition to the exact amount the tenant owes.

Provide the dates in which the tenant has defaulted on their obligations

Indicate that if the rent is not paid in full within three days of the date of the letter, if given directly to the tenant or three days from the date of arrival through mail, the tenant must vacate the premises

Provide the address where the tenant can pay the overdue rent amount

If the tenant does not respond to the request by the final day, the landlord should file an unlawful detainer case in court.

If the landlord wants to remove the tenant for reasons other than past due rent payments, such as illegal distribution of drugs or human trafficking, the landlord does not have to give the option for the tenant to cure misconduct.

Ending a month-to-month tenancy is a straightforward process. In most instances, barring rent controlled neighborhoods, the landlord can remove the tenant by creating a written notice with at least a 30-day warning of his or her intent to remove the tenant. If the tenant has lived in the unit for more than one year, the landlord must provide at least a 60-day advance warning of their intentions.

If the lease is a periodic lease, the written notice must be 30 or more days, unless the terms of the lease agreement indicate otherwise. If the lease terms indicate terms not congruent with California law, the minimum period that a tenant may have is at least seven days.

Illegal Evictions

The following are not valid reasons for a landlord to evict a tenant:

A tenant informed a landlord of a defect or necessary repair on the property

A tenant informed a government safety agency or public health inspector about the inhabitability of a property or a code violation

A tenant complained about a landlord’s management style

A tenant used collective bargaining by creating a tenant organization or union, or engaged in tenant activist behavior

Retaliatory Eviction

If a landlord seeks to evict the tenant for the aforementioned reasons — in short, if a landlord “retaliates” against a tenant — it is known as a retaliatory eviction. A tenant can make a retaliatory eviction claim as a defense to an eviction action.

It is against the law for a landlord to impose impossible demands or measures upon a tenant to prevent them from living on the property. A landlord also cannot threaten a tenant’s right to use the property to its maximum benefit.

Examples of illegal landlord behavior with the intention of retaliatory eviction include:

Changing a unit’s locks

Removing or replacing doors

Blocking a tenant’s car

Turning off a tenant’s water, heat, or electricity

Withholding or disposing of a tenant’s personal items

Harassing or threatening a tenant

Raising the rent substantially to prevent a tenant from renewing an agreement

Filing an unscrupulous eviction lawsuit

Constructive Eviction

Constructive eviction occurs when a residential rental property is in an uninhabitable condition and that living on the property is detrimental to a reasonable tenant. This includes the landlord’s failure to keep the property in proper safe condition and/or violating the tenant’s right to quiet enjoyment.

Under these circumstances, a tenant is deprived of the full use and possession of the property that was promised in the lease. The tenant has, for all intensive purposes, been “evicted”.

A landlord can be held liable if the conditions of the property warrant the tenant vacating the property or violating the terms of the lease through constructive eviction.

Examples of illegal landlord behavior that leads to constructive eviction include:

Failing to maintain the property in habitable condition

Failing to make required repairs that pose a safety risk

Making unnecessary repairs that affect a tenant’s right to quiet enjoyment

Otherwise interfering with a tenant’s right to quiet enjoyment

Harassing or threatening a tenant

Violating a tenant’s right to privacy

Entering a tenant’s unit without permission

Failure to follow the legal eviction process may subject a landlord to penalties and fees of up to $100 a day for as long as the landlord uses unlawful eviction methods.

Emblements and Evictions

Cultivated crops produced by a tenant on a landlord’s property are the personal property of the cultivator. An emblement is the profit derived from growing crops and is considered personal property. Although the land may be owned by the landlord, the tenant who produced the crops through their efforts is entitled to the any of the produce generated. Should the tenant be evicted prior to the cultivation process, the tenant is entitled to continue cultivating the crops and ultimately have the right to take the crops with them. If the tenant dies, the crops become the property of the tenant’s heirs. If the crops did not require labor to cultivate, the crops are the property of the landlord and not the tenants.

Crops that require labor to grow are called fructus industriales, while naturally growing plant growth is referred to as fructus naturales.

Example

Tenant Jerry grew an orange tree on his landlord’s property that did not require any labor. Jerry was evicted from the property for failure to make monthly rental payments. Is Jerry entitled to the crops?

No, because Jerry was not required to produce any effort to grow the orange tree, the landlord has the right to oranges after Jerry’s eviction.

Case Law As It Relates to Eviction

Case Review: Camacho v. Schaeffer (1987)

The case, Camacho v. Schaeffer (1987) 193 Cal.App.3d 718., involved a dispute regarding a landlord’s unlawful eviction.

A tenant (Camacho) rented from a landlord (Schaeffer). The conditions in on the property were uninhabitable: there were holes in the ceiling, no hot water, interrupted gas service, and an infestation of rats and cockroaches. Consequently, Camacho withheld rent payments. In an attempt to evict him, Schaeffer entered Camacho’s apartment without permission and removed the bed, sofa, tables, and chairs. Camacho went to the police and got a restraining order against Schaeffer. Despite the order, Schaeffer returned to Camacho’s apartment, broke down the door, and removed Camacho’s refrigerator. Camacho sued.

The Superior Court ruled that Schaeffer did not follow the legal eviction process and had employed threatening behavior towards Camacho. It ruled in favor of Camacho and awarded him damages in excess of $30,000.

Case Review: Channing Properties v. City of Berkeley (1993)

The case, Channing Properties v. City of Berkeley (1993) 11 Cal.4th 88., involved a dispute regarding a property owner giving proper notice and relocation reimbursements when it closed its apartment building.

A property owner (Channing Properties) owned a 33-unit building. At some point, it decided to take the rental units off the market. The City of Berkeley required Channing Properties to give tenants 180 days notice to move, rather than the standard 60 days notice that was required by state law. The City also required Channing Properties to pay each tenant $4,500 for relocation costs. Channing Properties sued the City over its stringent laws.

In court, Channing Properties indicated that the increased measures required by the City of Berkeley put an undue burden on property owners. The court ruled in favor of Channing Properties.