Most of the time when someone is residing in a residence/commercial space as a tenant there is a lease or rental agreement in place. However, at times there may be neither.
In these cases, the law will likely support a finding that the tenant is a month-to-month “tenant at will”. This is the default category for tenancies not supported by a written lease agreement in which the occupying party was initially welcome on the premises.
As a result, if the owner of the premises no longer wants the tenant to occupy the same, formal notice will be required to evict the occupant. Under a tenancy at will, the owner may terminate the tenancy for any reason by serving a 30-day notice to quit on the tenant. However, in situations where the owner has “good cause” to evict, such as when the tenant is destroying the property or certain criminal acts are being committed on the premises, the owner need only serve a 3-day notice to quit before proceeding with an unlawful detainer action.
Unlike the 30-day notice, a 3-day notice requires that the specific cause for the termination of the tenancy be listed on the notice itself. Statements specifying the tenant’s misuse of or damage to the property must be recorded and listed on the 3-day notice.
If a notice is served (3-day or 30-day) the owner must wait until the following day before filing an unlawful detainer Complaint. Once served, the tenant(s) will have between five (5) and fifteen (15) days to file an Answer to the Complaint, depending on whether they were personally served or substitute served with the Complaint.
If no Answer is filed by the tenant(s), then the owner can request that the Court take the default of the tenant(s), and proceed to obtain a Judgment restoring possession of the premises back to the owner. In the event the tenant(s) do file an Answer, the owner will have to set the unlawful detainer matter for trial, which is typically heard within twenty (20) days of such request.
At the trial, absent an agreement between the tenant(s) and the owner, the parties will have to present their case to the Judge. If the owner prevails, a date certain will be set wherein possession of the premises will be restored to the owner. If the tenant still refuses to leave after a Judgment has been entered against him or her, then the owner can apply for a Writ of Execution and the County Sheriff will execute the Writ of Execution, thereby physically locking the tenant out of the premises and restoring possession to the owner.
Throughout the unlawful detainer process, owners should keep in mind that “self-help” remedies such as changing the locks or removing the occupant’s belongings are strictly prohibited.
If you have tenant(s) who refuse to peacefully leave the premises of your residence and/or commercial property and need assistance in moving forward with eviction proceedings please contact our office.
466 W. Fallbrook,
Fresno, CA 93711
T: (559) 431-4888
F: (559) 821-4500
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10509 Vista Sorrento Pkwy., Suite 430
San Diego, CA 92121
T: (619) 399-7700
F: (619) 819-8400
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