Under California law, a landlord may file an action in civil court in order to remove a tenant who is no longer paying rent, no longer entitled to possession of the premises, or in breach of the lease agreement. This action is called an “unlawful detainer”. To determine under what circumstances an unlawful detainer action may be filed, refer to California Civil Code section 1161.
The unlawful detainer action takes priority within the court system and is expedited in order to allow a landlord who is no longer receiving rent, or who needs to remove a tenant no longer entitled to possession, to quickly regain possession of their premises.
In order to institute the proceedings, the landlord first must give the tenant proper notice which is dependent upon the type of lease. It is important that this notice be given in strict compliance with guiding procedural rules, as any mistake may result in costly delays in the action. To review the notice requirements, refer to Civil Code section 1161. These requirements are very specific. For example, if a resident tenant has breached their lease and is not paying rent, you may give them a “3-Day Notice” to pay rent or quit (leave) the premises. The code of civil procedure specifically states what must be stated in this notice. The notice must state the exact amount of rent that is due. If it is over stated, the notice is invalid and the action may be dismissed if the mistake is not corrected. Furthermore, the notice must state where and to whom the payment must be made. This notice must be served upon the tenant. If they are not served in person, it may be “nailed and mailed”, or mailed to their address and affixed to a conspicuous place on the house.
Once proper notice has been given, the complaint may be filed in civil court. When the complaint is filed, the court clerk will issue you a summons. You must then serve the tenant with the complaint and summons. This can be difficult for a tenant who is aware that you are trying to serve him. He must be served in person. If due diligence is afforded in attempting to serve the tenant (i.e.- you have tried to serve him four times and failed) you may then “post and mail” the summons and complaint. Once the tenant is considered served, he has five (5) days to answer. For more on service requirements, refer to California Code of Civil Procedure section 1162.
After the tenant’s answer has been filed, a landlord may request a trial, which must occur within twenty (20) days of the filing of the request. A prevailing landlord will receive a judgment, entitling them to possession of the premises, which may be executed after five (5) days.