This information is not meant to be specific legal advice. Although it is believed a reliable overview, it is not guaranteed. The laws in California change frequently and you should consult an attorney for specific legal advice.
As a first time Landlord, eviction can sometimes seem scary. With the right document preparation and procedure, it can go smoothly. I am a big proponent of doing your homework up front when screening for the best most qualified tenant applicant. But even the best of us will once in a while get a bad apple due to unforeseen circumstances. If this happens, save yourself a lot of grief and consult a professional attorney who handles evictions. Most of them charge only around $500 for the procedure and can save you thousands in lost time, aggravation, damages, and yes a do over ordered by the courts for failing to comply with state law.
In general there are 2 types of evictions, contested and uncontested. Lets first look at the uncontested eviction. When a tenant fails to pay rent or when a landlord wishes to terminate a month to month tenancy, there are 2 forms most commonly used. Respectively, they are the 3 day pay or quit and the 30 day notice to vacate. When a tenant fails to respond to these, a complaint is filed with the court. A summons and complaint is then served to each party to the action. At the time of this service, it is recommended that a prejudgment claim of right to possession be served also. This will make the judgement applicable to all parties occupying the residence not just the specific person mentioned in the complaint. This form could avert a third party “Arrieta Claim” in effect causing a do over! Once served the resident has 5 days to answer the complaint. If the resident fails to respond, the owner can request to enter default and judgment and be issued a writ of possession.
The writ of possession is then given to the Orange County or other Sheriff. and the eviction notice will be served. The tenant has 5 days to vacate at which time the sheriff will remove them if they are not gone. As the owner, you should be prepared to change the locks and secure the property. If the sheriff removed the occupant, then the occupant has 15 days to claim their belongings. If no sheriff was involved they have 18 days. After this time, the owner may dispose of the items if they are valued at less than $300. For items more than $300 a public action must be held. Any unpaid balances will have to be collected with another court action.
With regard to a contested eviction, if the resident answers the complaint, a memorandum to set a civil trial should be filed with the court clerk and request for a trial and notice of trial. The judge will hear the arguments and if the owner wins, judgment after trial by court and notice of entry of judgment will be prepared and recorded. The remaining steps are the same as above in the uncontested eviction. Should the tenant win, this is equivalent to a do over, and the owner will have to go back to the beginning and better prepare his case.
It is my sincere wish that you never have to use these procedures. But if you do, please consult the help of a professional attorney. If you don’t have one, feel free to contact me for more information.
