Feature
by Steven C. Williams
An eviction is the general term used for terminating a tenancy and recovering possession of property. An eviction can be as simple as serving a notice of termination of tenancy and having your tenant vacate. As you will see, however, it can become very timely and costly when the tenant refuses to leave. This may be particularly true when the tenant resides in a rent-controlled unit.
Terminating the Tenancy
The eviction process begins by terminating the tenancy. This can
be done by serving the tenant with a written notice of termination
of tenancy. However, if the unit is controlled by an eviction ordinance,
then the landlord cannot terminate the tenancy unless he or she
has “just cause” to do so. San Francisco Administrative
Code (Rent Ordinance) Section 37.9(a) sets forth the 14 just-cause
grounds permitting the termination of a tenancy in a rent-controlled
unit in San Francisco.
There are typically four different types of notices that can be used in terminating a tenancy: Three-Day Notice to Perform or Quit; Three-Day Notice to Quit; 30-Day Notice Terminating the Tenancy; and 120-Day Notice Terminating the Tenancy. The use of each of these notices depends on the situation.
Three-Day Notice to Perform or Quit
Three-Day Notices to Perform or Quit are typically used when the
tenant fails to pay rent or breaches the rental agreement. This
notice must give the tenant an opportunity to pay the rent or cure
the breach. If the tenant pays the rent or cures the breach within
the three-day notice period, then the tenant may remain in possession.
However, if the tenant fails to pay the rent or cure the breach
in a timely fashion, and the notice provides that the rental agreement
is forfeited, then the landlord is entitled to recover possession
of the unit from the tenant after the three-day notice period. The
three-day notice period definitely does not include the date the
notice was served.
Three-Day Notice to Quit
A Three-Day Notice to Quit may be served on a tenant when the tenant
is using the unit for an illegal purpose, committing waste, or subletting
or assigning contrary to the rental agreement. The tenant’s
improper use of the premises actually terminates the tenancy. The
Three-Day Notice to Quit simply tells the tenant to vacate within
three days of the service of the notice, excluding the date of service.
After the three-day period, the landlord is entitled to recover
possession.
30-Day Notice Terminating the Tenancy
To terminate a month-to-month tenancy, a 30-day notice is commonly
used. The tenancy is terminated thirty days after the service of
the notice, excluding the date of service. Effective January 1,
2003, a 30-Day Notice to Terminate a month-to-month tenancy will
no longer be sufficient. Instead, a 60-day notice will be required.
120-Day Notice Terminating the Tenancy
A 120-day notice must be served on a tenant when a landlord seeks
to withdraw all rental units in a building from rent or lease under
the Ellis Act (i.e., leave the residential rental business). The
tenancy is terminated 120 days after the service of the notice,
excluding the date of service. If, however, a tenant is at least
62 years of age or disabled and has lived at the rental unit for
at least one year, then the 120-day notice period may be extended
to one year; in these cases, a tenant might receive the equivalent
of a year’s notice.
Other Factors When Serving a Notice
As illustrated, the notice period may be as short as three days
or as long as one year. To make matters worse, if the notice expires
on a weekend or holiday, then the tenancy is not terminated until
the end of the next business day.
In addition, the period for some notices may also be extended if the notice cannot be personally served on the tenant. For example, if a Three-Day Notice to Pay Rent or Quit is served by posting it on the tenant’s door and mailing it to the tenant, then the three-day notice period is extended by five days. In such a case, a three-day notice actually becomes an eight-day notice.
Recovering Possession of the Property
Filing an Unlawful Detainer Action
Even after a notice has been served and the tenancy terminated,
a tenant often refuses to comply and vacate. At this point, the
landlord cannot take matters into his or her own hands by physically
removing the tenant. Instead, the landlord must sue the tenant in
court by filing an “unlawful detainer action” against
the tenant.
To initiate the unlawful detainer action, a complaint must be filed with the court and served on the tenant, along with a summons. The “summons and complaint” should be personally served on the tenant. Often, serving the tenant in person is difficult and time consuming when the tenant avoids the service.
If personal service cannot be made after repeated attempts, then the landlord must apply to the court for approval to serve the tenant by posting the summons and complaint at the unit and mailing it to the tenant. Unfortunately, in San Francisco this process can delay the unlawful detainer action for a month or more and increase the cost of evicting the tenant. The best action to take is to serve the tenant personally as soon as possible.
Setting the Action for Trial
Once the summons and complaint are served on the tenant, the tenant
must file an answer to the complaint within five days if personally
served or within fifteen days if served by posting and mailing.
After the tenant files an answer, the landlord may request that
the court set a trial date. Generally, the court will set the trial
date within 20 days.
A tenant may utilize various procedural tactics to delay the unlawful detainer action and increase the landlord’s costs. For instance, prior to filing an answer, the tenant may file certain motions challenging the allegations of the complaint or the service of the summons and complaint, such as a motion to quash, a motion to strike, or a demurrer. These challenges require a court hearing and may delay the proceeding more than a month. The landlord will incur additional costs defending these challenges, which are often frivolous. There are various tenant advocacy groups that will counsel and assist tenants in delaying unlawful detainer actions.
Once the trial date is set, the court is reluctant to continue that date absent a good reason. Thus, the landlord can usually expect to begin the trial within 20 days of the landlord’s trial request.
In the event the tenant fails to answer or respond to the complaint in any way, then the landlord may simply obtain a judgment for possession from the court. This is known as a “default judgment” and entitles the landlord to possession. A trial is not necessary to obtain a default judgment.
Discovery and Settlement Conference
After the tenant files a response to the complaint, either side
may demand “discovery” in an effort to prepare for trial
or settlement. Discovery is the process whereby the parties gather
information about the action from the other party through various
methods such as depositions, written interrogatories or document
requests. While discovery does not delay the eviction process, it
will add to the cost of eviction.
Approximately one week before trial, there will usually be a formal settlement conference at the courthouse. A judge or a judge pro-tem (neutral attorney) will attempt to get the parties to settle the unlawful detainer action. If the action does not settle, then it proceeds to a trial.
Trial
Either party has a right to a jury trial. Tenants typically demand
jury trials. A jury trial takes longer than a court trial and, as
such, will add to the cost of the eviction. Most residential unlawful
detainer trials are relatively short. They rarely last longer than
a week and can often be completed within one to three days. Of course,
this may vary depending on the type of eviction and whether a jury
is demanded. Due to the time and preparation involved, the cost
of proceeding through a trial can be substantial.
At trial, the landlord will try to prove that the tenancy was lawfully terminated and that the tenant remains in possession. If the landlord is successful, then he or she may obtain a judgment for possession of the unit as well as for any unpaid rent and damages (lost rent) that have been incurred since the tenancy was terminated. This will finally entitle the landlord to possession of the unit. The landlord still cannot physically remove the tenant—he or she must obtain the assistance of the sheriff.
Removing the Tenant
Once a judgment for possession is obtained, whether by default or
trial, the landlord can obtain a “writ of possession.”
This writ is delivered to the sheriff with instructions to evict
the tenant. Once the sheriff receives the writ of possession, the
sheriff goes to the property, posts a notice of eviction on the
door, and returns approximately five days later to perform the physical
eviction. In San Francisco, the sheriff only evicts on Wednesdays.
The time period for this process is approximately 12 to 16 days
from the time the writ of possession is delivered to the sheriff.
An additional week may be added to this process if the eviction
is scheduled to occur around the holidays.
Even after a judgment for possession is obtained and the sheriff has scheduled the eviction, the tenant can still delay his or her eviction by asking the court for a temporary stay of eviction because of some hardship. If granted, the eviction will be delayed for a certain period of time. In San Francisco, tenants are occasionally successful at obtaining one-week stays of eviction. A longer stay of eviction is not usually granted except in extraordinary circumstances.
Conclusion
Terminating a tenancy and recovering possession of the property
can be rather painless when the tenant vacates in accordance with
a notice. On the other hand, when the tenant refuses to comply with
the notice and fails to vacate, the landlord could be in for a long
and costly battle. In either event, before endeavoring to evict
a tenant, the landlord should consult with an attorney to ensure
compliance with all state and local laws.
The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of the SFAA or the SF Apartment Magazine. This information is general in nature and not legal advice, for any specific matter please consult a qualified attorney. Steven C. Williams is with the law firm of Wiegel & Fried, LLP. He can reached at 415-552-8230. © Copyright 2002.