F.A.Q.’S Evictions

Frequently Asked Questions By Landlords

We hope that the following information will help you understand some of your obligations and rights as landlords.

    1. What does the landlord do about a tenant that has not paid the rent?
    2. Are there specific requirements as to what the notice must state?
    3. When can I serve the three day notice to pay or quit?
    4. Can I give a tenant notice after the tenant gives me a 30 day notice to terminate tenancy?
    5. How can I start my eviction?
    6. How does the landlord terminate an undesirable tenant who is on a month to month lease or rental agreement?
    7. Does a landlord have to state why he/she is terminating the month to month tenancy?
    8. Are there any special requirements in areas that have rent control laws?
    9. How does the landlord terminate an undesirable residential tenant who  has not complied with the terms of the lease other than non-payment of rent?
    10. Who should serve the 3day, 30 day or 60 day notices?
    11. What happens when the notice period is up and the tenant has not paid nor vacated the premises (rent case) or if the tenant has not cured the non-compliance or vacated the premises (non-compliance other than non-payment of rent case)?
    12. How long does the process take?
    13. If rent is due on the 1st of the month, how long should a landlord wait to give notice?
    14. How much security deposit can a landlord demand?
    15. Can the tenant force the landlord to apply the security deposit against  the last month’s rent?
    16. Can the landlord use self-help to remove the tenant or deny services to  the tenant?
    17. Can I charge “Late Fees” on Past Due rent? Will they be considered “Liquidated Damages”
    18. As a landlord, don’t I have the right to inspect my residential rental property at any time I want? Can’t I simply show up and demand to see the inside of the premises?

      1. What does the landlord do about a tenant that has not paid the rent?

        The tenant must be served with a three-day notice demanding that the rent be paid or the tenant surrender possession of the premises within three days. (If the 3rd day falls on a weekend or a holiday, the first business day is considered the last day that payment can be made.

        If there is a written lease that states that the notice period is longer than three days, then the notice period in the lease would govern rather than the statutory three-day notice.

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      2. Are there specific requirements as to what the notice must state?

        Yes, the requirements are dictated by the California Code of Civil Procedure. The statutes require that 1) the notice must be in writing; 2) must describe the premises in question with reasonable certainty (a street address and corresponding unit or suite number (as appropriate) is usually enough); 3) States the amount due (or nature of breach).

        If the notice is worded in the alternative “pay or quit” (Ca Civ Pro § 1161(2)) or “perform or quit” (Ca Civ Pro § 1161(3)), the amount due or nature of the breach must be stated precisely so as to apprise the tenant of what exactly is required to effect a “cure.” A nonpayment of rent three-day notice may not overstate the amount due and must also include information on how and to whom the back-due rent may be paid.

        The landlord should check with an experienced lawyer before serving a form that does not meet the statutory requirements or is incorrectly prepared.

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      3. When can I serve the three day notice to pay or quit?

        A three-day notice to “pay or quit” must be served after the rent demanded becomes due.

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      4. Can I give a tenant notice after the tenant gives me a 30 day notice to terminate tenancy?

        Yes. If a tenant breaches the terms of the lease, the landlord can give a 3 day notice to terminate or cure the breach. For example, if a tenant gives notice that he/she is terminating the lease in 30 days, but fails to pay the amount of rent due for that last 30 days (or the prorated amount should rental due date happen during the last 30 days), the landlord has every right to give a 3 day notice to quit or pay the amount of rent due.

        If the tenant fails to pay the rent (cure the breach) the landlord can serve the tenant with an unlawful detainer complaint (eviction).

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      5. How can I start my eviction?

        You may start an eviction by contacting us online or call 949-855-0600 and we will either fax or email a packet of information for you to complete. Once we receive your information we will handle the rest. It is that easy.

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      6. How does the landlord terminate an undesirable tenant who is on a  month to month lease or rental agreement?

        The tenant must be served with a notice stating that the month to month tenancy is terminated and demanding that the tenant surrender possession at the end of the notice period. If the tenant has resided in the premise for one (1) year or more, the notice must be served at least sixty (60) days prior to the date of the requested termination date. (If the tenant has resided in the premise for less than one (1) year, the notice must be served at least thirty (30) days prior to the date of the requested termination date.)

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      7. Does a landlord have to state why he/she is terminating the month to  month tenancy?

        In Orange County landlords are not required to state or prove a reason for eviction (except in the case of federally-subsidized “Section 8” (HUD) housing where 90 days’ written notice and specified “good cause” to evict are required.)

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      8. Are there any special requirements in areas that have rent control laws?

        Yes. In rent control jurisdictions, some form of “eviction control” usually restricts the grounds upon which tenancies may be terminated. Some local controls are quite extensive and others very selective.

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      9. How does the landlord terminate an undesirable residential tenant who  has not complied with the terms of the lease other than non-payment of rent?

        The non-compliance with terms of a lease is a breach of covenant. Just like failing to pay rent and the law requires that the tenant be given an opportunity to cure the non-compliance.

        The landlord must serve the tenant with a three (3) day notice to cure or vacate, stating the non-compliance, and stating that the tenant has three (3) days to correct the non-compliance or else the lease is deemed terminated and the tenant shall vacate upon such termination.

        Examples of such non-compliance include but are not limited to, unauthorized sub tenants, pets or vehicles; nuisance such as failing to keep the premises clean and sanitary; disturbance of other tenants by loud noises.

        If the tenant fails to cure the breach within the statutory period, the landlord can file an unlawful detainer complaint to evict the tenant.

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      10. Who should serve the 3day, 30 day or 60 day notices?

        The landlord may serve the notice himself or herself or have it served by an independent agent (preferably a licensed process server) hired by the landlord. We recommend that the independent agent serve the notice since there is less likelihood of a mistake being made and the independent agent’s testimony would probably be more believable in court should a question arise concerning the service of the notice. This is true because the independent agent is perceived by the court of not having a personal stake in the matter nor a motive for lying while the actual landlord is perceived by the court as having a stake in the matter and a possible motive for lying.

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      11. What happens when the notice period is up and the tenant has not paid  nor vacated the premises (rent case) or if the tenant has not cured the  non-compliance or vacated the premises (non-compliance other than  non-payment of rent case)?

        The landlord’s attorney prepares a Complaint for Unlawful Detainer (eviction complaint) which is personally served with a Summons and other required papers on the tenant. Service is made by an adult (not by the landlord), the Sheriff or by a licensed process server. The tenant has five days, excluding the day of service, weekends and holidays, to file an answer. If an answer is filed by the tenant, a trial is then set by the court.

        If an answer is not timely filed by the tenant, the landlord’s attorney submits a “Request to Enter a Default”. Once the Default is entered, a Judgment is entered against the tenant and the court then issues a Writ of Possession. When the Clerk issues a Writ of Possession, it will then be delivered to the Sheriff. The Sheriff then posts a 5 day “Notice to Vacate” on the premises. The Sheriff will then call the landlord or the landlord’s designated agent to meet the Sheriff at the property to remove the tenant and change the locks.

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      12. How long does the process take?

        It really depends upon whether the tenant complies with the notice or fails to leave. It is safe to plan on 30 to 45 days from the time the notice period ends. Of course if the notice is 30 or 60 days, that additional time must be added.

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      13. If rent is due on the 1st of the month, how long should a landlord wait  to give notice?

        Because the process may take 4 to 6 weeks or longer, it is best to give notice on the 2nd of the month (or the day after rent was due but not paid). This is especially true if the tenant has not communicated to the landlord that he/she will be a few days late with the rent or if the tenant is habitually late. The longer the landlord delays in giving notice, the longer the tenant will remain without the landlord receiving rental income.

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      14. How much security deposit can a landlord demand?

        California law prohibits the landlord from taking more than the equivalent of 2 times the monthly rent. There is no reason why a landlord cannot be paid for the first and the last month up front, plus the equivalent of 2 months rent. (To make it easier for the tenant to come up with the funds, the lease can provide that the security deposit be paid in 2 or 3 installments.)

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      15. Can the tenant force the landlord to apply the security deposit against  the last month’s rent?

        No. The security deposit is to cover the landlord for damages caused by the tenant. It is not rent. If the security deposit is depleted, the landlord will have nothing to fall back on should the tenant default or cause damage to the premises.

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      16. Can the landlord use self-help to remove the tenant or deny services to  the tenant?

        No. California law strictly prohibits landlords from preventing the tenant from gaining access to the premises by any means, including but not limited to changing the locks. The landlord may not remove the tenant’s personal belongings from the premises unless it is after the tenant surrendered possession of the premises; after the tenant has abandoned the premises; or after a lawful eviction.

        In addition, the landlord may not directly or indirectly terminate or interrupt utility services furnished the tenant, including but not limited to, water, heat, light, electricity, gas, elevator, garbage collection or air conditioning, whether or not the utility service is under the control of or payment is made by the landlord.

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      17. Can I charge “Late Fees” on Past Due rent? Will they be considered “Liquidated Damages”?

        Sizable late charges imposed by a rental agreement or lease might be unenforceable as invalid liquidated damages and therefore a late fee under residential rental agreement held void pursuant to California Civil Code section 1671(d). This was the result in one case because in trial the court found that the landlord failed to plead or present evidence that damages for late payment of rent were “impracticable or extremely difficult to fix”.

        Additionally, late fees charged as interest on overdue accounts (apparently, past due rent included) do not risk violating the state usury law, which limits interest payable “for any loan or forbearance of any money”. The reason the court found was the rental of property is akin to the “transfer of property in a thing for a price in money”; as such, a late fee assessed on overdue rent does not involve payment for a “loan” (the delivery of a sum of money under a contract to return an equivalent amount at some future time) or a “forbearance of money” (the giving of further time for payment of a debt or an agreement not to enforce a claim at its due date).

        Landlords wishing to take advantage of this position should make sure the rental agreement clearly specifies the accrual date for the late fee. The agreement should also clearly provide that accrual of the late fee obligation will not permit the tenant to defer payment over time. In other words, the tenant has an immediate obligation under the rental agreement to pay both the rent and the late fee.

        It has been suggested landlords wishing to pursue late charges accrued under a late-charge provision in the rental agreement should consider actually serving two (2) notices on the tenant: a three-day notice to pay rent or quit (based on the rent default) and a second three-day notice to cure the independent (late-charge) covenant or quit.

        If the tenant pays neither the rent nor the late charges, the landlord may pursue the unlawful detainer with two separate causes of action. Alternatively, the landlord could file a single cause of action unlawful detainer based on the nonpayment of rent and then seek to collect the late charges in a separate small claims action.

        One issue may arise when “late charges” are used. I can be argued that if there is a late charge, then there is a “grace period” when the rent must be paid. It is logical to presume that the “grace period” extends the time for a certain number of days (often 5 or ten days) after the “due date” (usually the first of the month) To avoid the risk of deferring for several days the right to serve a defaulting tenant with a three-day notice to pay or quit, landlords who want to include late-charge provisions should use language that clearly establishes and segregates the late fees from the rent and the rent due date. It is important then to expressly state that timely payment of the rent by the due date is of the essence and that notwithstanding the late-charge provision, failure to pay the contract rent on or before the specified due date will subject the tenant to immediate service of a three-day notice to pay or quit.

        The law provides costly sanctions against a landlord who violates any of the above rules including paying for the tenant’s costs and attorney’s fees.

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      18. As a landlord, don’t I have the right to inspect my residential rental property at any time I want? Can’t I simply show up and demand to see the inside of the premises?

The right to inspect your property is expressly spelled out in the California Civil Code Section 1954.  A landlord may enter a residential unit at any time to deal with an emergency (such as a broken water pipe).  He must give reasonable notice to enter for the purpose of making necessary or agreed repairs and various other similar improvements, or to show the premises to prospective or actual purchasers, mortgagees, tenants, workers or contractors.  He may enter at the tenant’s request, before the termination of the tenancy; also, if the tenant has abandoned or surrendered the premises, or with the consent of the tenant at the time of the entry.

Remember, while you own the property, the tenant has the legal right to possession of the premises during the lease.  The law provides costly sanctions against a landlord who violates any of the above rules including paying for the tenant’s costs and attorney’s fees.

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The foregoing information is offered to help inform you, however it is not intended as a substitute for professional legal help. Only a licensed lawyer can provide such help. Contact us online or call 949-855-0600 to set an appointment.

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