The process of evicting a tenant—regardless of reason—can be an extremely stressful scenario for landlords no matter how experienced. Being proactive and having a thorough understanding of the process to mitigate risk is essential for success. To that end, the team at Geraci Law Firm has leveraged their decades of collective experience in the real estate industry to compose the following overview of the eviction process to assist with this aspect toward gaining possession of the property.
Pre-Notice: Landlord’s Right to Enter
California law entitles residential tenants to exclusive possession of the rented area, which includes the right to exclude the landlord or owner of the premises as well. However, in the following five limited scenarios, the landlord has the right to enter property without first obtaining the explicit consent of the resident.
Repairs/Services/Show
The landlord is allowed to enter the premises to complete needed or mutually agreed-upon repairs, decorations, alterations, or improvements—which includes regular testing of smoke/carbon monoxide safety equipment—and to show the unit to potential buyers, mortgagees, tenants, or contractors. Note that entry solely to conduct general inspections is not allowed in California unless there is an affiliated HUD subsidy that requires an annual inspection.
Emergency
This exception only applies in the event that the health or safety of the resident is at stake, or the landlord is making a legitimate effort to safeguard the property from being damaged. There is no requirement to provide a notice of intent in this context.
Abandonment
The landlord may enter the premises without notice “when the resident has abandoned or surrendered the premises.”
Initial (Pre-Termination) Inspection
In order to conduct the initial pre-termination inspections, the landlord must provide at least a 48-hours’ notice.
Court Order
The owner is permitted entry in accordance with a valid court order, which most often occurs in an unlawful detainer action.
Serving Notice on a Residential Tenant
Typically, the landlord must deliver a written “Notice of Intent to Enter” to the tenant that gives them “reasonable notice” of the intended date/time of the entry. The notice must be mailed or personally delivered to the recipient or to an individual of appropriate age or, alternatively, left in proximity of the entryway in such a manner that a reasonable person would notice it. From a legal perspective, 24 hours is considered “reasonable notice;” however, if the notice is provided via mail, then six days’ notice of entry is the standard.
When the landlord plans to enter for showing the property to potential buyers, they should first notify the tenant of the date/time 120 days in advance that the property is for sale and that they may be contacted in the event that a showing is necessary. This advance notice may be provided orally, in person, or by telephone. Additionally, the landlord must leave written notice of the entry inside the property on the date of the inspection/showing.
Determining the Appropriate Notice
Choosing the right notice, completing it accurately, and serving it to the tenant in accordance with the law are the three most essential steps for landlords to focus on when pursuing an unlawful detainer action. If there is an error in any of the above referenced steps, it could lead to delays or altogether prevent the landlord from obtaining their desired outcome. The following are the most common categories of breach, which is the determining factor when selecting the type of notice that must be provided to the tenant.
Nonpayment
Should the tenant fail to pay rent, the landlord should serve a “Three-Day Notice to Pay Rent or Quit” notice that includes the outstanding balance owed (e.g., “Rent was due and unpaid for the period of July 1 through July 30.”). The notice cannot be served until the rent is past due and should not include any late fees or non-rent payments.
Breach of Lease Agreement
In the event of a material breach, a “Three-Day Notice to Perform Covenants or Quit” is appropriate. This form of notice includes the specific section of the agreement that the tenant breached and any actions, if any, they may take to cure it. Should the tenant fail to take corrective action, the landlord must then serve a subsequent notice, “Three-Day Notice to Quit”, stating that the tenant now has a three-day period to vacate the premises. If the resident is creating waste or performing activity constituting a legal nuisance, then a “Three-Day Notice to Quit for Waste” or a “Three-Day Notice to Quit for Nuisance” may be sent.
No Stated Cause
A “Thirty- or Sixty-Day Notice Terminating Tenancy” may be sent to month-to-month tenants in jurisdictions where there is no “just cause” without specifying a reason as long as it is not discriminatory or retaliatory in nature.
Foreclosure
In order to create a legal basis for an unlawful detainer case in foreclosure scenarios, a unique three-day or ninety-day notice is issued. Month-to-month and periodic tenants are afforded a ninety-day notice prior to the termination of their tenancy if the landlord is going through the foreclosure process. For fixed-term tenants, a ninety-day notice only suffices under limited circumstances. Purchasers of foreclosed properties must follow specific guidelines pertaining to the removal of residents in terms of providing adequate notice, right of return, relocation assistance and just cause.
The notice must include the names of all tenants above the age of 18 followed by the phrase: “and all others in possession.” Ensure the address is correct and as detailed as possible as all writs issued by the court will be based on it. If the notice is associated with a breach, it should explicitly state the nature of the breach and any actions the landlord took to cure it.
Get your plan of action in place before you need to use it. Partner with Geraci Law Firm to help protect your assets regardless of the situation. Contact us today.
