My Tenant has not Paid the Rent . . . Now What? (Part 2)

In some circumstances an acceptable resolution may be negotiated with the tenant without having to utilize the legal system and or engage the services of an eviction attorney.

Most people have heard the term eviction but many have an incomplete or inaccurate understanding of what the term really means.  Eviction is defined as the act of dispossessing or depriving a person of the possession of land as a result of the judgment of a court: to recover property from a person by legal process.  In California that process is referred to as an Unlawful Detainer Action lawsuit.

If a tenant is told that they have to pay rent or vacate a property and they leave in the middle of the night they have not technically been “evicted”.  The property must be recovered via a specific legal process – the unlawful detainer action lawsuit.  In the unlawful detainer action the owner may see only to recover possession of the property, not the unpaid rent.  Unpaid rent must be recovered in a separate legal action.

The legal process of removing a tenant from a property begins with proper service of notice to the tenant – a legal demand for payment of rent utilizing the three day notice to pay or quit document.  It is highly recommended that an approved form from a reputable source such as the California Apartment Association be used.

The service of notice will formalize your intent to collect the rent and, in many cases, prompt payment of delinquent rent. The notice must be completed according to strict guidelines and can only demand payment of unpaid rent not inclusive of late fees or other monies owed to the landlord.  It is not possible to move forward with an unlawful detainer action without proper service of a three day notice to pay or quit. Although a landlord may deliver notice directly to a tenant, according to the process of service guidelines, it may be advisable to engage a Process Server to serve notice.

Also, acceptance of only partial payment of rent due nullifies any prior three day notice served.  A new three day notice to pay or quit must be re-served for the collection of any remaining delinquent balance of unpaid rent.

While the unlawful detainer action can be filed directly by a landlord or owner there are many potential pitfalls that can cause costly delays.  For those who opt to proceed with an unlawful detainer action it is highly recommend that the services of a qualified eviction attorney be engaged. The costs to engage the services of an eviction attorney are moderate in uncontested cases and are often far more cost effective than doing it one’s self.

The unlawful detainer action lawsuit is the only means of legally removing a tenant.  Landlords are barred from physically removing tenants, changing the locks, shutting off utilities or removing doors or windows in attempts to force a tenant out of a property.  The use of such unlawful methods can result in the owner being responsible for a tenant’s actual damages as well as penalties of up to $100 per day for the period the landlord was using such unlawful tactics.

In conclusion Landlords and managers must take action quickly, maintain clear communication and be decisive in how they wish to address non payment of rent by a tenant.  The Unlawful Detainer Action remains the only legal means of getting a non paying tenant out of a property.  Once the tenant is out of the property the owner or manager will need to determine how they will collect past due monies owed and potentially deal with remaining personal property a tenant has left behind, both of these subjects will be addressed in future articles.