TYPES OF EVICTION
Actual Eviction
Actual eviction occurs when the lessor or someone with paramount title ousts the tenant from possession. Partial eviction is also possible when the tenant is forcibly evicted from a substantial portion of the leased premises, but continues to occupy the remainder under the lease.
Constructive Eviction
In order for a constructive eviction to occur the tenant must vacate. The reason for vacating can be any of the following:
- The lessor or someone acting at their direction, renders the premises unfit for its original purposes
- The lessor's actions deprive the tenant of the beneficial enjoyment of the premises
- The tenant vacates the premises in response to an improper notice to quit threatening an unlawful detainer action, even if the lessor does not physically substantially interfere with the tenant’s possession and quiet enjoyment.
The effect of constructive eviction is that the tenant is relieved of any further liability for the payment of rent after abandonment of the premises.
JUST CAUSE TO EVICT
Just Cause Eviction Under Civ Code § 1946.2
In California, eviction of a tenant is regulated by various laws and procedures. One of those laws is the "Just Cause" law codified in Civ Code § 1946.2. The law applies depending on certain factors such as how long a tenant has resided on the property, what type of property it is, whether the tenants are adults, and how many units there are.
Just cause to evict
Civ Code § 1946.2 cites the following tenant actions that are just cause to evict:
Breach of a lease covenant
Non-payment
Nuisance
Criminal activity on the premises
Committing waste
Using premises for unlawful purpose
Refusing to allow owner to access premises
Failure to vacate after termination of employment, license, or agency relationship.
In scenarios where there is just cause to evict and the tenant's breach is curable then the notice must give the tenant three (3) days, excluding weekends and holidays, to cure the breach or get out. If the tenant cures then there is no longer grounds for eviction. If the landlord waives the breach after service of the notice, the tenancy is not terminated even if the breach is not cured.
If the breach is non-curable then the notice must state the grounds for the breach giving the tenant three (3) days, excluding weekends and holidays, to get out.
No just cause to evict
Under Civ Code § 1946.2 the owner can evict if one of the following are true:
Owner (or their immediate family) wants to occupy premises
Withdrawal of property from the market
Intent to demolish or substantially remodel in effort to comply with government ordinance
When there is no just cause to evict, the landlord is liable to the tenant under Civ Code § 1946.2 for the cost of finding a new place to live. In the notice the owner must notify the tenant of the tenant’s right to relocation assistance or rent waiver. If the owner elects to waive the rent for the final month of the tenancy, the notice shall state the amount of rent waived and that no rent is due for the final month of the tenancy.
The amount of relocation assistance or rent waiver shall be equal to one month of the tenant’s rent that was in effect when the owner issued the notice to terminate the tenancy. Any relocation assistance shall be provided within 15 calendar days of service of the notice. If a tenant fails to vacate after the expiration of the notice to terminate the tenancy, the actual amount of any relocation assistance or rent waiver provided pursuant to this subdivision shall be recoverable as damages in an action to recover possession. The relocation assistance or rent waiver required by this subdivision shall be credited against any other relocation assistance required by any other law. An owner’s failure to strictly comply with this subdivision shall render the notice of termination void.
EVICTION PROCESS
Notice Requirement under CCP § 1161
Before the lessor can evict the tenant, they must first serve the tenant written notice of intent to evict. If the notice is for non-payment, the notice must state the name, phone number, and address of the person whom tenant must make payment to.
This notice requirement does not extend to scenarios where the lessor is evicting a holdover tenant, in that scenario the lessor can move forward with an unlawful detainer action without needing to serve notice. The notice requirement gives the tenant an opportunity to cure the breach (if they can) and retain possession of the property.
What Must Go In the Notice
The three-day notice must be in writing and should contain all of the following items:
Landlord’s signature;
Description of the tenancy premises;
A statement of breach (including either breach of obligation to pay rent, other breach of covenant, or unlawful use) and a
Demand for correcting the breach within three days, if the breach is capable of being corrected;
An unambiguous demand for possession, in the event that the tenant does not cure breach; and
A declaration of forfeiture
How to Serve the Notice
The three-day notice must be served using one of the following three alternatives:
The landlord may deliver a copy to the tenant in person
If the tenant is absent from the tenant’s place of residence and usual place of business, the landlord may
Leave a copy with a person of appropriate age and discretion at either place; and
Send a copy by mail addressed to the tenant at the tenant’s place of residence;
If the landlord is unable to either (a) determine a tenant’s place of residence and usual place of business, or (b) find a person of appropriate age or discretion at either place, the landlord may:
Affix a copy in a conspicuous place on the property; or
Deliver a copy to a person residing there, if such person can be found; and
Send a copy through the mail addressed to the tenant at the place where the property is situated.
Actual Eviction
If the tenant has not exited the premises by the third day, the landlord has three options to evict:
Unlawful detainer action
Action for Ejectment
Action to Quiet Title
An unlawful detainer action is an optional procedure for evicting a tenant who holds the premises after expiration or in violation of lease terms. As a summary proceeding, an unlawful dating action has "precedence" over most other civil actions on a court's calendar, meaning you will not have to wait the months or years it takes other cases to go through the court system. Due to its ability to jump in the front of the line, an unlawful detainer proceeding is used more often than an action for ejectment or to quiet title. The tenant has only five days to answer the unlawful detainer complaint and summons, rather than the usual 30 days
An action for ejectment is a lawsuit to obtain possession of a premises without the necessity of contesting title to the property. An ejectment action is a proper suit for a landlord to recover possession of tenancy property from a tenant who is wrongfully maintaining possession of the premises, although a suit for unlawful detainer is the more common method of obtaining possession.
An action to quiet title is used when more than one person claims to be the owner of an interest in the same property and the two claims conflict with each other.
Prohibitions Against Self Help
A landlord may not use self-help eviction tactics such as removing the tenants property from the premises, changing the locks, or cutting off the utilities. Use of self-help eviction tactics will give rise to a claim for tenant against the landlord for damages.
If you need help evicting a tenant, call our office today for a free phone consultation with one of our associates so that we can determine which avenue is best for you: 1-800-233-8521.