SAN DIEGO REAL ESTATE ATTORNEYS EXPLAIN UNLAWFUL DETAINERS
Evictions, otherwise known by their more technical name unlawful detainers can be a burdensome part of real estate ownership. Doing the unlawful detainer process on your own not only takes your time and energy, it often can lead expensive complications. If you find yourself needing eviction services, we are happy to take the stress off of your shoulders and provide you with efficient and cost-effective service so you can get back to making your property productive again.
When Tenant’s Won’t Leave Quietly
While every landlord hopes for tenants who pay their rent on time, don’t make trouble, and who stay for years or longer without complaint, every landlord sooner or later will face nightmare tenants who need to be evicted. These are the tenants who are habitually late with rent or don’t pay rent at all, who have the sheriff’s called to the residence repeatedly for domestic issues, refuse to follow the lease terms, use illegal substances and so on. These are the tenants that need to be removed with an unlawful detainer.
Sometimes landlords will get lucky and these tenants will leave on their own without having to be evicted, or others will leave with gentle prodding, but when they don’t—that’s when the true misery begins. It is best to consult us immediately when it seem like a tenant is going down the road of refusing to pay rent or breaching the rental contact because we can negotiate a preventative move-out and prevent you from suffering significant distress and loss of profits. However, we also are happy to provide diligent eviction services for tenants who have already reached the point of no return.
Problem Tenants: Legal Justifications for Getting Them Out
Due to the large number of lease types (residential, commercial, agricultural, etc.) there are countless types of lease provisions which tenant’s might breach and force you as a landlord to seek their removal from your property. However there are a couple of common reasons you might want a tenant evicted such as failure to pay rent, failure to leave after expiration of a fixed term lease or after a 30 day notice (tenancy under a year) or 60 day (tenancy of a year or more), refusal to comply with a 3 day notice to comply with a lease term, or failure to leave after a 3 day notice to quit due to illegal tenant activities (e.g. drug use).
In any of these cases a landlord should take care to seek legal advice prior to embarking on the difficult eviction process because the reason for eviction determines the type of notice and procedures needed to ensure the process goes smoothly. Missteps regarding the type of notice or other actions such as accepting even one dollar of partial rent can derail the entire eviction process and require you as landlord to start over. This costs you lost rents, court costs, gives tenants longer to damage the premises and gives you undue stress and frustration. While we cannot eliminate the inconvenience and unpleasantness associated with getting rid of a problem tenant, we can minimize it and ensure your unlawful detainer doesn’t last any longer than necessary.
Navigating the Eviction Process Minefield
While it is your tenant who has acted wrongfully, you as landlord are always at risk of being hung up or sued for accidentally overlooking some obscure technicality when they try to evict problem tenants. This is why you should always turn to legal counsel prior to taking any actions in an eviction which may expose you to liability. As an example, some landlords may believe they can engage in what courts call “self help” to get a tenant to leave without going through with an unlawful detainer. These “self help” actions include but are not limited to turning off a tenant’s utilities, threats, attempts to physically remove and others. These actions can lead to big money lawsuits against you for wrongful eviction, assault, libel, trespass, intentional infliction of emotional distress, etc.
Aside from risking being sued, performing an eviction without legal counsel can lead to the unlawful detainer taking far longer than you would probably like. Seemingly minor errors can lead to the entire eviction being thrown out which would force you to endure starting the process all over again which can take weeks or longer depending on the length of the notice required. One such common error is misstating the rent due in the unlawful detainer paperwork—an error of even a dollar can cause the judge to dismiss your case.
The Eviction Process
If a deal cannot be negotiated to get a difficult tenant out of your unit, we will submit and serve the proper unlawful detainer documents to the tenant and anyone else residing in the unit. Prior to drafting and serving any eviction papers we will ensure that the proper type of notice was provided to the tenant and that the notice contained the correct information as determined by the circumstances of your particular eviction. If for whatever reason the eviction notice served by you or your property manager is incorrect, we will provide you with the information a corrected notice should contain so you don’t have to suffer losing the eviction lawsuit.
After the appropriate notice time expires we will draft the summons and complaint and ensure that it contains the correct information. The summons provides the tenant and anyone living in the unit with notice that there is an eviction suit pending, and allows them the legally required notice that they can defend the suit if they wish. It is highly important that the summons contains the appropriate language regarding unknown occupants, since if it does not these persons could seek to challenge the eviction suit based on a lack of notice.
The complaint contains the information the court needs to determine why the tenant is being evicted, how much rent is due (if any) and other miscellaneous details they need to properly proceed with the case. Once these documents and any other documents required by your specific case are completed we file the original with the court and keep a copy to serve on the tenant. We will refer you to a professional process server or inform your property manager regarding the proper method of service of the eviction documents. The rules regarding correct service of the summons and complaint are very specific and incorrect service can derail your eviction and cost you valuable time and money or even lead to harsher consequences if there is evidence of bad faith or overly aggressive conduct.
Once the unlawful detainer documents have been filed and served we must wait five calendar days (or longer if there are court holidays or if the last day is a weekend day) in order to see if the tenant decides to answer the eviction suit or not. Some of the time tenants may decide they are not willing to fight the eviction and will leave before the five days are over, which of course saves you time and money and is better than their filing an answer. Other times the tenant will not file an answer to the unlawful detainer, but will still remain in the unit. While not as ideal as the case where the tenant simply moves out, this situation allows you to file papers with the court which cause the tenant to automatically lose the eviction suit.
In the event the tenant does file an answer to the eviction suit, we will need to prepare for the possibility that the tenant will show up for the unlawful detainer hearing. This hearing will occur within 21 days after the tenant files their answer to the eviction. Often tenants will not show up to the court at all and we are then able to file papers to win the eviction automatically. Other times tenants will show up to the court but will be prepared to negotiate a move-out instead of being forcefully evicted. We can file documents with the court to ensure that in event the tenant does not comply with the settlement agreement that they are evicted from the unit without having to start the process over again. In the event you decide to retain a tenant on condition they pay past due rent or leave by a certain date, we can file papers with the court so they could be evicted without restarting the suit.
When Evictions Go to Trial
Some tenants refuse to negotiate at any time during the eviction process and will force you to go to trial in order to get them out. When this happens you are very likely to face at least some resistance from the tenant in the form of what are called affirmative defenses—basically claims the tenant has to prove in order to reduce or eliminate their responsibility for rent, or even seek damages from you. In these instances it is very important that you are able to successfully disprove the tenants claims in order to evict them and prevent any negative consequences for you.
We will provide you with professional representation in the eviction hearing and ensure that the tenant is held to task for any and all defenses they may raise so that you can get them out and get on with business.
Commercial Property Evictions
Evictions or disputes with commercial tenants have different rules and requirements, and you may have more rights as a landlord in these cases. That said, these types of eviction cases can involve more complicated issues and you as a landlord might want to seek more involved damage awards than are typically sought or awarded in residential evictions. We have experience dealing with commercial property issues and with negotiating with tenants regarding the failure to pay rent and other issues, so that you can prevent having to resort to an eviction in the first place.
Successfully Evicting Tenants in Bankruptcy
Occasionally, landlords might face a curveball when trying to evict a deadbeat tenant when a tenant files for bankruptcy. As you may know bankruptcies prevent creditors from attempting any further collections of debt, and landlords seeking evictions are included in this restriction on creditors. Unless you follow the correct procedures when trying to evict a bankrupt tenant you may find yourself in hot water with the bankruptcy court. To proceed with an eviction against a bankrupt tenant we will submit the proper documents on your behalf to get the bankruptcy court to allow you to continue with the eviction and get your space rented again.
If you’re having difficulty with a tenant who simply won’t pay, won’t comply or who is unruly or doing something illegal it would be best for you to give us a call before things get out of hand to save yourself time and money. We’re happy to help you evict problem tenants so you can get your units back to positive cash flow status.