Residential tenants refer to tenants who rent places to live, such as apartments or houses. They are afforded many more legal protections and rights than their commercial counterparts. As such, it is much harder to evict a residential tenant than it is to evict a commercial tenant.
Also, while the process to evict residential tenants is similar to the one used to evict commercial tenants, residential tenants have greater access to legal defenses and the laws are created in their favor.
In general, the process for evicting California residential tenants involves the following steps:
- First, a landlord must have just cause to remove a tenant from the premises. For example, a landlord can evict a tenant if they fail to pay rent, violate the terms of a lease, damage the property, conduct illegal activities inside a unit, or cause a nuisance. In contrast, a landlord cannot evict a tenant based on discriminatory reasons or in retaliation to a tenant complaining about the living conditions.
- Once just cause is established, the landlord must provide the tenant with notice to either remedy the issue or vacate the premises. Notice requirements vary by reason and other factors. For instance, a tenant who fails to pay rent will get a 3-day notice to pay or move out. Additional notice requirements will be discussed in further detail below.
- If the tenant fails to move out or fix the issue within the time frame prescribed by the landlord’s notice, then the landlord must file an unlawful detainer action with the court. The landlord must also serve the related Summons and Complaint on the tenant after the action is filed.
- The tenant will have five days to vacate or to respond to the action. If they respond, then the court will schedule a hearing no later than 20 days after it receives the tenant’s response. If the tenant does not respond, then the landlord must obtain a default action from the court and a Writ of Possession. A Writ of Possession will allow a local sheriff to remove the tenant.
- If the parties move forward with the unlawful detainer action and the hearing is held, what happens next will depend on the outcome of the case. For instance, if the landlord wins, the tenant will have five days to vacate the premises. On the other hand, if the tenant wins, the eviction will be stayed.
What Rights Do Residential Tenants Have?
According to the law, some basic rights that residential tenants have include:
- The right to fair housing: Under the federal Fair Housing Act, a landlord cannot discriminate against a tenant based on their race, gender, origin, disability, and so on.
- The right to habitable housing: This is known as the “implied warranty of habitability”, which essentially states that all residential premises be fit for human habitation. This means that leased dwellings must have heat, drinkable water, working bathroom facilities, and various other items that meet standard living conditions.
- The right to receive notice of eviction: Landlords must provide their tenants with notice before they can legally evict them.
- The right to be free from self-help evictions: Landlords may not use self-help methods (e.g., changing locks, removing personal belongings, etc.) to evict a tenant. They must go through the proper legal channels if they want to remove a tenant.
- The right to have their security deposit returned: Unless the landlord provides written documentation of what damages a security deposit is covering, a tenant has a right to have their security deposit returned. This means that a lease cannot state that a security deposit is non-refundable.
In addition, some residential tenant rights may be provided within the rental agreement. For instance, most residential lease agreements do not allow a landlord to raise the rent before a lease expires. Unlike commercial tenants, residential tenants can expect to pay the same amount of rent for the duration of the lease. A lease can also be used to legally protect a tenant in the event that a landlord breaches its terms.
How Long Does It Take To Evict a Tenant In California?
California eviction actions tend to be quick unless a tenant challenges the eviction. The first step a landlord must take in order to initiate the eviction process in California is to serve written notice of the eviction on the tenant. The notice must be in writing, name all tenants living at the premises, identify the physical address of the property, and state the reasons why the landlord is seeking eviction.
If the tenant has resided on the premises for less than a year, then they must receive a 30-day written notice. If the tenant has rented the property for a year or longer, then the landlord must provide a 60-day notice. A 90-day notice may be required for tenants who live in subsidized housing or get some sort of reduction in rent.
It is important to note, however, that certain activities (e.g., creating a nuisance or failing to pay rent) may result in a 3-day notice. This means that the tenant will have three full days to remedy the issue or else face legal action for eviction.
If the tenant fails to fix the issue or vacate the premises after the prescribed time period expires, then the landlord may file an unlawful detainer lawsuit in court. Unlawful detainer lawsuits will be discussed in further detail below, but generally a hearing will take place within 20 days. If the landlord prevails, then the tenant will have up to five days to vacate the premises before they are lawfully removed by the sheriff.
Thus, as is evident by the procedures discussed above, California evictions can take anywhere from a few days to several weeks or months.
How Much Does It Cost To Evict a Tenant in California?
It can be fairly expensive to evict a residential tenant in California. Under current California eviction laws, the average cost to evict a residential tenant can range anywhere between $350.00 to upwards of thousands of dollars.
The reason why there is such a wide discrepancy is because a variety of different factors can influence the final amount, including the county in California where the eviction action takes place.
Some other factors that must be taken into account when calculating eviction expenses include:
- Local court costs, such as how much it costs to file an eviction action and to hire a process server to serve the tenant with the Summons and Complaint.
- Whether the action is contested or not is a major factor in determining costs. An uncontested eviction can cost less than $500, whereas a contested eviction will include filing additional paperwork and retaining a lawyer for the eviction hearing.
- Attorney fees can become expensive if the issues are complex and highly contentious. Sometimes, the losing party may have to pay for the prevailing party’s attorney fees. In such instances, the losing party can add upwards of thousands of dollars to their eviction costs.
- If the tenant damaged the property or the landlord is required to pay for costs of repair, this can significantly alter the amount of the eviction.
- Lost rent is another item to take into consideration. One particular statute in California requires a landlord who evicts a residential tenant to pay for relocation costs if they do not have just cause for initiating the action. On the other hand, the tenant may be required to pay back owed rent. However, a tenant is most likely being evicted for not paying rent. Therefore, it may be a long time before the landlord sees that rent.
- Depending on the facts of a case, the landlord might also be losing rent while they are fighting the action in court. If a tenant is bankrupt, they may not only be waiting a while to receive the owed rent, but they are also losing future rent for every week it takes to resolve the action and another paying tenant is not occupying the unit.
- Again, it is much easier and less expensive when the eviction is not contested. Even in cases where the action is not contested, the tenant may still refuse to leave. If this happens, the landlord must also pay sheriff fees to forcibly remove the tenant. They cannot do it themselves.
What is the Unlawful Detainer Process in California?
In the event that a tenant refuses to leave the premises after receiving written notice, a landlord may file an unlawful detainer. An unlawful detainer is a legal action that is used to quickly determine whether a tenant must vacate the premises.
According to California eviction laws, a tenant who has received a Summons and Complaint for an unlawful detainer action will only have five days to vacate the premises, or alternatively, to respond to the complaint.
If the tenant chooses to respond, the court will schedule a trial within no later than 20 days. The action will be heard before a judge unless the tenant requests a jury. A tenant who requests to have a jury present will be required to pay fees before the trial starts.
If the landlord prevails, the tenant will have five full days to vacate the premises or else the sheriff can remove them and their personal belongings. A court may also order the tenant to pay for a landlord’s legal fees. However, if the tenant wins, then the eviction will be stayed. They may also receive a rent deduction depending on the facts of a case.
On the other hand, if the tenant does not respond to the complaint or fails to move out after five full days have passed, then the landlord must request a default judgment and obtain a Writ of Possession before the sheriff can remove a tenant.
Should I Hire a Lawyer for Help with Eviction Issues in California?
Residential evictions in California can be a long and complicated process. It often requires court intervention and following specific legal procedures. Therefore, if you have any questions or concerns regarding eviction issues in California, then you should contact a California real estate lawyer for further advice.
Your lawyer can help you navigate the complexities of the court system and the California eviction process. Your lawyer can also discuss what legal rights and protections you have, determine whether any defenses apply, and explain your rights and duties according to the terms of your lease. Additionally, your lawyer will be able to provide representation in court should it become necessary.