NON-DISCRIMINATION NOTICE: THE LAW OFFICE OF GARY LINK DOES NOT DISCRIMINATE AGAINST ANY PERSON IN ACCORDANCE WITH THE REQUIREMENTS OF LOCAL, STATE OR FEDERAL FAIR HOUSING LAWS, NOR DOES THE LAW OFFICE DISCRIMINATE ON THE BASIS OF ANY OF THE FOLLOWING CATEGORIES AS DEFINED BY APPLICABLE FAIR HOUSING LAW: RACE, COLOR, RELIGION, SEX, FAMILIAL STATUS, NATIONAL ORIGIN, MILITARY STATUS, DISABILITY, ANCESTRY, IMMIGRATION STATUS, PRIMARY LANGUAGE SPOKEN, CITIZENSHIP, AGE, SOURCE OF INCOME, GENDER, GENDER IDENTITY, GENDER EXPRESSION, SEXUAL ORIENTATION, MARITAL STATUS, GENETIC INFORMATION, OR MEDICAL CONDITION.
HOW LONG WILL IT TAKE TO EVICT MY TENANT?
In Sacramento County approximately 70% of all the eviction cases filed with the Court will take approximately 15 to 21 days within which to obtain possession of the premises from the date that the tenant is served wth a copy of the lawsuit for Unlawful Detainer. The other approximately 30% of the cases will take approximately 30 - 45 days within which to obtain possession of the premises from the date that the tenant is served with the lawsuit. These statistics are based upon the filing and prosecution of over 43,000 evictions cases in Sacramento County by this office over the last thirty six years.
Note that the 70% figure represents those cases where the tenant has been served with a copy of the lawsuit, and has failed to file any opposing papers with the court. Consequently, this office will file a "Request to Enter Default" against your tenant as soon as the five days from the date of the service of the lawsuit have expired. We shall then instruct the Sacramento County Sheriff's Office to evict your tenant. Occasionally, some cases may take longer due to a variety of tenant delay tactics. Please see the next question for what the typical "tenant delay tactics" are.
WHAT ARE THE TYPICAL TENANT TACTICS THAT CAN DELAY AN EVICTION?
Frankly, there are numerous situations which will cause unavoidable delays in the processing of an eviction. By and large, the variety of motions, hearings, trials, claimed defenses, misalleged filing of lawsuits against the landlords and other tactics and techniques are found by the courts to be meritless, not well founded, and primarily done solely for the purpose of delaying the eviction process, intimidating the landlord, and spitefully done for the sole purpose of revenge. This can be extremely troubling for the typically careful landlord or property manager in this Sacramento community.
Indeed, it is troubling for our entire community when tenants or others who exercise little integrity in suggesting ill-fated delay tactics on behalf of tenants will assist in impeding the rights of law-abiding landlords. In the claimed name of providing legal assistance or advice to tenants with little or no merit, only the short term picture is viewed. The long term picture is that as landlords have begun to recognize the cost and anxiety associated with being landlords who are confronted with a multitude of potential meritless delay tactics filed by tenants, landlords are financially compelled to charge more for rent, ask for higher security deposits, more carefully screen and limit the opportunities to rent except to only the very, very, very most qualified and financially secure prospective tenants. This has sadly created a spirt of antagonism, fear and animosity between the landlord and the tenant communities, where there should be a spirt of harmony and working together for the common benefit and protection of all concerned. Essentially, the entire landlord-tenant community is undermined by unscrupulous and unethical tenant delay tactics.
To assist tenants in appropriately and legally seeking to enforce their legal rights tenants have access to free legal assistance at the Carol Miller Justice Center. The attorneys and tenant assistants are present and available right inside the courthouse at the Carol Miller Justice Center where lawsuits for Unlawful Detainer are filed and heard by our local Commissioners, Judges, and Judges Pro Tem. Tenants also have free access to legal assistance through the services of Northern California Legal Services, through McGeorge School of Law - Community Legal Services Clinic, and through the abundant services of many attorneys who frequently represent tenants against landlords. A quick look in the Sacramento Yellow Pages will show you just how many attorneys advertise to the tenant community. There are also a variety of individuals and businesses claiming to offer low cost "clinic" type legal services to tenants.
Because there are so many enterprises and law firms essentially doing all they can - whether in the context of claiming that they are being ethically and morally correct in their zealous endeavors to thwart, delay, suspend, interfere with, and otherwise cause the eviction process to be difficult for landlords, or not - it is imperative to have the services of an experienced landlord-tenant law attorney representing the landlord. If you have retained a qualified and experienced law firm review your paperwork, and properly "cross the T's and dot the I's", you will most often be successful in your goal to have a tenant who has violated the basic terms and provisions of your rental agreement, or who has violated Caliornia law, be evicted properly through the judicial process.
The most frequent tenant delay tactics are listed below:
- Evasion of Service of Process: Your tenants will attempt to avoid receiving the service of the lawsuit for Unlawful Detainer paperwork. Although this law office has utilized the services of a high quality process serving company which employs trained and licensed process servers, tenants are becoming wiser and more sophisticated in engaging in efforts to avoid being served with the lawsuit paperwork. For instance, they will never open the door to the premises to receive the papers, will actually run away from the process server, hide out, or they will frequently reside temporarily with friends or relatives so that the process server will not be able to hand the papers to them. We have instructed the process servers that we hire to contact you directly if this type of situation should occur; it may be possible that at any given moment of time you will be aware of the actual location of the tenant so that the process server can have the tenant immediately served. Our process servers will make up to five additional attempts to serve the tenants without charging you any more money for their services. Ultimately, if the tenant cannot be located, we shall be required to file a special application with the court to permit the posting of the Summons & Complaint on the tenant's door, and to thereafter mail a copy to the tenant by certified mailing. The anticipated delay for this entire special process will take approximately 20 more days.
- Request to Set Aside Default: After the tenant has been served with the Summons & Complaint if the tenant fails to file any Response with the court, the law office will file a "Request to Enter Default" with the court. Thereafter, the tenant may file a document with the court claiming that due to "inadvertance, excusable neglect, mistake, surprise, or extrinsic fraud" that the "Request to Enter Default" should be set aside, and that the tenant should be given a second chance to have a chance to go to trial rather than be summarily evicted. The court clerk's office will receive the filing of the tenant's Motion to Set Aside Default, and then schedule a hearing for the matter. Even if the tenant loses the motion at the time of the hearing this will still have caused a delay of 10-14 or more days.
- Application for Stay of Execution: After the tenant has been defaulted by the filing of a Request to Enter Default, or if the tenant has actually lost at trial, the Sacramento County Sheriff's Office will be instructed by the law office to post a Notice to Vacate on the tenant's door. This notice demands that the tenant be vacated from the premises not later than five days from the date of posting. If the tenant fails to vacate by that time, the Sheriff will physically remove the tenant if necessary. Within the five day period the tenant may file yet another delaying motion with the court called an "Application for Stay of Execution." In this motion the court will be weighing the claimed hardship of the tenant such that the tenant may be entitled to receive additional time to vacate the premises; in other words receive a "stay" or "suspension" of the time for the Sheriff to actually evict the tenant. Sometimes the court will grant these requests without even contacting the landlord or the landlord's attorney to ascertain the truth or merit of the tenant's claim. Other times the court will grant a temporary "stay" until such time as a hearing is scheduled on the matter so that the landlord and the tenant may argue the truth or merit of the tenant's claim, or to allow the landlord to establish a more compelling hardship that outweighs the tenant's claimed hardship.
If this tenant delay tactic is utilized by the tenant, even if the landlord prevails, this may result in a delay of anywhere from three to forty days depending upon the circumstances.
- Claim of Right to Possession: An individual who has not been named on the lawsuit, or who has not been served by the process server with a copy of the Summons and Complaint for Unlawful Detainer may file a document with the court claiming that they have "tenants" rights (a "claim of tenancy"), and as such they should be permitted to oppose the eviction action. If this is filed you may expect a delay of approximately 20-30 more days.
- Motion for a Continuance of the time within which to file an Answer with the court.
- Demurrer. A motion that attacks the allegations of the lawsuit.
- Filing of an Answer to the lawsuit. This is the most common delay tactic.
- Motion to Quash claiming that the tenant was not served with the lawsuit.
- Motion to Strike attacking the allegations of the lawsuit.
- Motion for New Trial
- Motion for Reconsideration
WHAT DO I DO IF MY TENANT CONTACTS ME AFTER THE CASE HAS BEEN GIVEN TO THE LAW OFFICE?
If your tenant contacts you regarding the eviction or attempts to settle the case with you, you may and should discuss the potential terms of settlement with your tenant. Immediately after speaking with your tenant, contact the law office to prepare us for any anticipated telephone call from the tenant. DO NOT simply instruct the tenant to call the law office without you first contacting us! We will want to know the basic terms and provisions that you have discussed, and have you instruct us on your particular choices and desires. We shall then be happy to discuss the terms of potential settlement with the tenant, and negotiate a resolution that is in your best interests.
Many times landlords who fail to honor these instructions will think it wise to enter into some type of settlement with the tenant without consulting with the law office. Invariably, this is a foolish thing to do because there are many clauses and provisions of which the law office is familiar that will provide the landlord with an abundance of protection of which the landlord may not be aware. Essentially, it is recommended that you speak with your tenant to "iron out" some of the major terms; however, the law office must be notified to prepare the proper paperwork. DO NOT enter into any type of complete agreement with the tenant without our advance written approval - our approval will only be given if the terms and provisions are set forth in written form to be signed by both the landlord and the tenant.
WHAT IF I RECEIVE MONEY FROM MY TENANT AFTER THE LAWSUIT IS FILED?
DO NOT cash or negotiate the funds. DO NOT take the money to the bank. DO NOT issue a receipt to the tenant. DO NOT take the money without an advance written settlement agreement being prepared by the law office. The consequence of accepting money from the tenant after the lawsuit has been filed is that the tenant will argue to the court that the matter was entirely settled with you, and that you have lost all of your rights to evict, obtain a money judgment for unpaid rent, attorneys fees, and costs of suit.
Please DO NOT attempt to prepare your own settlement agreement with your tenant. Essentially, would you perform medical surgery on yourself? A wise answer is that you would never do that which only a skilled and trained professional should do; of course, it now goes without saying that neither should you jeopardize your legal position by cashing funds or accepting funds that have been given to you by the tenant after the lawsuit has been filed unless you have the advance written permission from the law office. We will tell you the circumstances under which you should accept the funds, if any.
MAY I ENTER INTO ANY AGREEMENTS WITH THE TENANT AFTER THE LAWSUIT IS FILED?
After the lawsuit has been filed with the court, if you are contacted by your tenant, DO NOT enter into any agreements with the tenant unless and until you first contact one of the attorneys at the law office. Any and all agreements must be in writing and in proper legal form. DO NOT attempt to prepare your own written settlement agreement with your tenant. Let the Law Office of Gary Link do it properly!
DO I NEED TO SEND A SECURITY DEPOSIT STATEMENT TO THE TENANT EVEN IF I HAVE FILED A LAWSUIT?
Absolutely! Remember that within twenty-one days of the date that the tenant has vacated the premises you must send a "Disposition of Security Deposit Statement" to your tenant which will detail how much, if any, has been applied to cleaning or repairs above and beyond normal wear and tear, or to unpaid rent pursuant to the terms of your rental agreement.
WILL I OBTAIN A MONEY JUDGMENT AGAINST MY TENANT?
In Unlawful Detainer actions, an additional part of the service provided to you by the Law Office of Gary Link is to obtain a money judgment against your tenant. This service is included in the initial retainer fee. In most "default" situations the money judgment typically includes unpaid rent through the day you obtain possession of the residence, attorneys fees against your tenant if you have a written, signed rental agreement providing for attorneys fees to be awarded against the tenant, as well as court costs if your pre-lawsuit notice contains a demand for costs.
Accordingly, after you obtain actual possession of the premises - whether by Sheriff's lock-out, mutual agreement with the tenant or otherwise, AND after you have sent your security deposit statement to the tenant, simply complete our Money Judgment Questionnaire (which will be automatically mailed to you with Status Report #2), and return the completed form to our office. Unless you return this information to us, we shall not be able to submit your request for a money judgment to the court.
CAN I COLLECT UPON THE MONEY JUDGMENT?
Upon your specific request - after the money judgment is obtained, the Law Office will attempt to collect from the tenant through the process of Wage Garnishment or Bank Levy. Upon collection by either method, we shall send you two-thirds of any sums collected from your tenant, less any sums advanced by this office on your behalf. After the money judgment is obtained against your tenant, contact one of our staff to inform us of your former tenant's place of employment. The statistical probability of collection against a former tenant is approximately 2%. Most tenants are not able to be relocated, are unemployed, receive some form of governmental assistance, are self-employed, or for many other reasons not able to be effectively collected against. Essentially, the "lion's share" of the victory in an eviction action is to quickly and legally obtain possession of the premises. Knowing this should encourage you to carefully and fully screen each and every applicant.
HOW LONG IS MY JUDGMENT VALID?
The judgment and enforcement thereof is effective for up to ten (10) years from the day of the judgment. It may be renewed pursuant to the California Civil Code.
WHAT IS AN ABSTRACT OF JUDGMENT?
The recording of an abstract of judgment with the Sacramento County Recorder's Office becomes a lien upon all non-exempt present or after-acquired interests of the judgment debtor. Also, the filing of the "Abstract of Judgment " imparts notice to all persons of its contents and any subsequent purchaser, mortgagee, and lienholder purchases, and takes with the same notice and effect as if the copy of the decree were a duly recorded deed, grant or transfer.
If you wish for an Abstract of Judmgment to be filed by this office, please send us a check for
$75.00 plus $10.00 for each additional person that is to be named on the abstract. This fee is required in advance.
HOW SHALL I KNOW WHEN THE SHERIFF WILL EVICT MY TENANT?
After the Law Office has obtained the Judgment for Possession against your tenant, we shall instruct the Sacramento County Sheriff's Office to contact you or your agent as to the date and time that the Sheriff will arrive at the tenancy premises to remove the tenant. Ordinarily, you will not be contacted by the Sheriff's office until the morning of the actual eviction. Note that the Sheriff will not conduct an eviction on weekends or holidays. There is no need for you to contact our office unless the tenant vacates possession prior to the actual Sheriff eviction, or unless the tenant attempts to negotiate with you for more time to remain in the premises; however, if you are not contacted by the Sheriff within 25 days after the lawsuit is filed, call our office immediately.
WHAT HAPPENS WHEN I MEET THE SHERIFF AT THE TENANCY PREMISES?
The Sheriff's Officer will meet you at the premises. He or she will post an Eviction Restoration Notice on the door, and invite the tenant to leave the dwelling. You should be fully prepared at that time to immediately change all the locks at the premises, post "No Trespassing" signs on the dwelling, and be prepared with a camera to conduct a "walk-thru" of the premises while you take photographs of the damages caused by the tenant. You should also have one or more witnesses accompany you; these individuals may become valuable to you if your tenant sues you in a claim that you did not return the whole security deposit. They may also be valuable in your own case against the tenant for your claims of damage and repair above and beyond normal wear and tear that exceed the amount of your security deposit.
WHAT SHALL I DO WITH THE PERSONAL PROPERTY OF THE TENANT?
After the tenant vacates possession, the law requires you to protect the former tenant's property in a place of safekeeping for up to fifteen days after personal delivery upon the tenant of a legal form entitled "Notice of Right to Reclaim Abandoned Personal Property"; however, you must maintain the personal property for up to eighteen days if you send the notice to the tenant by first class mail. the time period begins to run from the date of personal delivery or mailing. If you do not know of the tenant's new address, simply mail the notice to the former tenancy premises. Upon request, this notice will be provided to you as a client of this office. This notice must also be delivered to any other person that you reasonably believe to be the owner of the personal property. The property may be removed to a storage facility of your choice. The property may remain at the former tenancy premises if it is so extensive as to prohibit removal.
WHAT IF THE TENANT DEMANDS THAT I RETURN THE PERSONAL PROPERTY?
Presuming you have followed my instructions to issue the Notice of Right to Reclaim Abandoned Personal Property, with the exception of the first two days after the tenant has vacated the real property, AND the personal property still remains at the former tenancy premises, you are not obligated to return the personal property to the tenant unless and until the tenant pays you for the cost of storing the property. Note that if the property is so extensive that it must remain at the residence for the specified time period described in the preceding paragraph, you may demand the fair rental value of the premises for the number of days the personal property remains at the premises until the date of disposal or sale. My next answer will explain this in greater detail.
Under no circumstances may you demand payment of any unpaid rent, attorneys fees, costs of suit, statutory penalties, unpaid utilities, unpaid late charges, damages, repairs, etc. as a condition for returning the personal property to the tenant. You may only demand the payment of the cost of storage and/or moving of the personal property. Later on, if you have been required to publish a Notice of Sale of the property, then you may also demand the cost of advertising.
IF THE TENANT DOES NOT CLAIM AND PAY FOR THE STORAGE COSTS OF THE PERSONAL PROPERTY AFTER THE 15/18 DAY PERIOD, WHAT DO I DO?
If the total value of the property was reasonably assessed by you, and so stated on the aforementioned Notice of Right to Reclaim Abandoned Personal Property to be worth less than $700, you may do anything you wish to the personal property (ie. sell, destroy, give away, etc.). Your appraisal must be reasonable. I suggest that you take photographs of the belongings and have someone assist you in inventory and value assessment. Please do not forget the cliche that "One person's junk is another's treasure !" That old fiddle just might be a Stradivarius!
If the total value of the property was reasonably assessed by you to be worth more than $700, you must conduct a sale of the property by public "auction." After the eighteen days (if you mailed the Notice of Right to Reclaim Abandoned Personal Property form), or after fifteen days (if you were fortunate enough to hand deliver the Notice of Right to Reclaim Abandoned Personal Property form to the tenant), then you must publish a Notice of Sale in a newspaper of general circulation in the county in which the personal property is located.
The newspaper will then publish a Notice of Sale for two consecutive weeks. The sale will be scheduled approximately three to four weeks later. During the interim period, you must store and keep the personal property in such a location that it is not stolen, damaged or destroyed. Again, be reminded that other than your own testimony (which will be claimed by the tenant to be biased) the only way that you will be able to prove the condition of the property at the time of the beginning of the storage is if you have taken photographs and have a witness.
Prior to the actual sale, if the tenant comes to you and demands that you return the personal property, you may demand the advance payment of the costs of storage, the costs of moving and the costs of advertising the sale. Remember, that you may not make demand for advance payment of unpaid rent, unpaid utilities, unpaid late charges, attorneys fees, costs of suit, statutory penalties, damages, etc. as a condition to the return of the property.
Few people, if any ever show up to the sale. At the sale you will be able to sell the property to the highest bidder. If you are the only bidder, then the personal property becomes yours; and, you are free to throw it away or give it away. If there is a bidder that pays you more than the costs of storage, moving and advertising, then you must deliver the amount that is greater than the costs of storage moving and advertising to the County Treasurer's Office.
MAY I SUE MY TENANT FOR DAMAGES TO THE PROPERTY THAT ARE NOT COVERED BY THE SECURITY DEPOSIT?
Absolutely. We recommend that if the amount of repairs and damages above and beyond normal wear and tear, cleaning, or unpaid rent exceeds the amount of the Security Deposit that you received from your former tenant, and that amount is less than $10,000, that you file suit in the Sacramento Small Claims Court. Do not forget that you have only twenty-one days within which to send a "Disposition of Security Deposit Statement" to the tenant after the tenant has vacated the premises. Also, remember that you must first send a letter of demand to the tenant wherein you make demand for the payment of the amount beyond the security deposit. The letter should allow the tenant at least ten days to pay the demanded amount, or suffer the consequence of you filing a lawsuit for the amount of your losses.
WHAT ARE THE LANDLORD'S RISKS ASSOCIATED WITH THE FILING OF A LAWSUIT FOR UNLAWFUL DETAINER (EVICTION LAWSUIT)?
This is such an important question to answer. It is also the reason why you will want to have the most qualified attorney or law firm represent you in your eviction proceedings. You will not want to have an attorney who is timid, or who is reluctant to handle "complex" or "complicated" cases; indeed, any attorney who expresses that s/he is shy about handling any type of landlord-tenant matter is not worth their weight in salt. Any case, even what appears at first to be the most simple, routine and mundane of cases can quickly turn into the proverbial "federal" case with a tenant filing all sorts of motions, petitions, appeals, and affirmative lawsuits against you for even the most spurious and meritless of claims. This is why you need a law firm who has the capability and desire to represent you for the entire spectrum of potential landlord-tenant litigation, rather than a law firm who only handles the "cookie-cutter" evictions.
As an example of the measure of competence that has been expressed by one of our landlord-tenant law firm competitors in the Sacramento community, please read a few excerpts from a letter that was sent to a client that was referred to our office:
April 17, 2002
Client City, State, Zip
"The one thing that is abundantly clear is that our office does not and cannot handle the type of litigation you have in store for you.
As I said in the message I left on [name of addressee's] answering machine, our office basically has a Honda Civil production line and I cannot build a Lamborghini in the midst of it. I am not equipped to take depositions, answer interrogatories and perhaps do jury trials.
I can offer you my sympathy for the ordeal you face but I cannot offer you my services.
My principal competitor is The Law Office of Gary Link. He has a larger staff and several attorneys in his office and might be able to handle a case such as yours. His phone number is 447-8101.
Name of Sacramento attorney
We believe that at the Law Office of Gary Link in light of Mr. Link's thirty-six years as a litigation attorney, with over 44,000 eviction cases and over
14,000 eviction trials, we can competently and zealously represent any landlord-tenant type case - not merely the "cookie-cutter" situations. Isn't this the protection that you want from a law firm?
The risks associated with eviction lawsuits are as follows:
- The landlord may not prevail in the action for Unlawful Detainer, thereby subjecting the landlord to an adverse judgment against the landlord for the tenant court costs and attorneys fees, if applicable.
- If the tenant raises retaliatory eviction as a defense and prevails, the landlord may not be able to remove the tenant from the premises for less than 180 days, unless within the interim period the landlord is able to establish "good cause" for an eviction notice or proceeding.
- The landlord may be subjected to defending breach of contract, intentional and negligent infliction of emotional distress, punitive damage claims, as well as actions claiming wrongful eviction.
Accordingly, at the Law Office of Gary Link, before we engage in representation of a client for any eviction lawsuit, we always receive the assurance of the client and/or the property manager that the following facts are true and correct:
- The eviction action is not being initiated with a retaliatory or vindictive motive,
- The eviction action is not being initiated with a motive of discrimination on the basis of race, national origin, ancestry, religion, sexual orientation or preference, gender, marital status, age, physical hardship, disability, source of income, or for any other arbitrary or discriminatory reason.
- The client has carefully investigated the grounds for the Unlawful Detainer proceeding and is correct as to the identity of all the adult occupants in possession of the tenancy premises, the amount of rent specified as due, the circumstances of service of any notice upon the tenant(s), the identity of the owner of the property, and the contents of the notice to quit.
- The premises is (1) habitable and in compliance with California Civil code Section 1941 and 1942, or (2) the tenant is responsible for any lack of habitability, or (3) the client has been prevented by the tenant from maintaining habitability, or (4) the landlord has no knowledge of lack of habitability.
- All adult tenants named on the Notice to Quit (prepared by the client or at the request of the client) are in possession of the premises.
- If a client is a property manager or agent of the landlord that s/he has the express authority to enter into the initiation of actions for Unlawful Detainer as well as the authority to represent the owner or landlord with this law office.
HOW WILL I KNOW WHEN I CAN TAKE POSSESSION OF THE TENANCY PREMISES; WHY CAN'T I TAKE POSSESSION IMMEDIATELY?
Gary Link, Attorney, is President of the Law Office of Gary L. Link, Inc. Since 1979, Mr. Link has represented landlords in over 44,000 eviction cases and litigated over 15,000 eviction trials. He is a member of the California Apartment Association, the Rental Housing Association, as well as a member of the California Bar Association. For questions relating to this article, call the law office at 916-447-8101. The information in this article is applicable as of 2017. Because laws may change please contact the law office to affirm continuing validity of the contents of this article.
Many times, the landlord will not be specifically informed by the tenant that the tenant has "vacated" possession of the rental premises, leaving
the landlord in doubt as to whether to enter the unit and recover possession or not. Typically, the tenant will not have transferred possession of the keys to the unit, telephoned the landlord that the tenant has indeed vacated, or sent any type of correspondence to state that the premises has been "abandoned" by the tenant. The landlord is then forced to independently determine whether the most financially feasible and appropriate course is to take possession of the premises (1) through the processing of a lawsuit for Unlawful Detainer, (2) through the service of a Notice of Belief of Abandonment, (3) through taking possession immediately.
The best way that I have been able to explain what decision the landlord should make is by portraying an analogy that I have entitled "55-65-
75". The analogy is to driving on the freeway at 55 miles per hour, 65 miles per hour, or 75 miles per hour.
55 MPH = UNLAWFUL DETAINER LAWSUIT:
When driving at 55 miles per hour, it takes longer to arrive at your destination than when driving 65 mph or 75 mph. It is also the safest way to
arrive from point "A" to point "B". Statistics have proven that are fewer traffic accidents when driving at the slower speed, and the risk of receiving a
speeding ticket is reduced to a minimum. The analogy to driving 55 mph is to have the tenant evicted through the process of filing a lawsuit for Unlawful
Detainer. The lawsuit process will take the longest time of the three alternatives; most typical default evictions in Sacramento will take 40 to 60 days from
the time the tenant is served with the lawsuit until the Sheriff finally evicts the tenant. It will also usually be the most expensive process due to typical
attorneys fees and court costs of $675 in Sacramento County. Nevertheless, although the eviction process is the longest and most expensive approach, it
is the surest and safest way to obtain legal possession of the premises with a minimum of risk that the tenant will prevail in a later lawsuit brought by the
tenant against the landlord wherein the tenant claims that the premises was prematurely or wrongfully restored to the landlord.
65 MPH = SERVING A "NOTICE OF BELIEF OF ABANDONMENT OF REAL PROPERTY:
The "middle of the road" approach - which is similar to driving 65 miles per hour on the freeway - to determining whether to take possession of
the premises without the necessity of filing of a lawsuit, may be exercised when there have been at least 14 days of consecutively unpaid rent, AND the
landlord has formed a "reasonable" belief that the tenant has abandoned the premises. As with driving a little slower than 75 mph, yet faster than the legal speed limit (thereby increasing the risk of a traffic accident or receiving a speeding ticket), this method will take at least 18 days of the notice, and will expose the landlord to a moderate risk of liability in the event the landlord is determined by a judge or a jury that there was a failure to properly assess the evidence as to whether a reasonable landlord would have formed a "reasonable" belief of abandonment before mailing the "Notice of Belief of Abandonment" to the tenant. Of course, the central issue for determination is to assess what specific facts exist that could cause the landlord to have a preliminary "reasonable" belief of abandonment of the premises. The most common facts that a landlord should look for are:
1. Has the electricity and/or gas been turned off?
2. Are papers being delivered at the premises without being removed from the porch?
3. Has the mail carrier informed the landlord or neighbors that there has been a change of address filed by the tenant?
4. Have the neighbors been consulted to inform the landlord that the tenants were seen removing their belongings from the premises?
5. Have the tenants stated to the landlord or others that they were living elsewhere or that they were no longer living at the premises?
6. After conducting an inspection of the premises pursuant to a lawfully served "Notice of Intent to Enter", was it discovered that:
(a) all of the furniture was removed from the premises,
(b) there were no toiletries, linens, dishware at the premises,
(c) there was no food in the refrigerator or in the cupboards,
(d) the telephone has been disconnected,
(e) there is only trash and garbage scattered through out the unit.
The mere fact that the landlord knows that the tenant left personal property on the premises does not, of itself, justify a finding that the tenant
has "abandoned" the premises. Unfortunately, a landlord will not usually have the convenience or comfort of having all of the above factors in existence;
thus it is recommended that the landlord then serve a "Notice of Belief of Abandonment" by mailing this written notice by first class mail to the tenant's
address, or by personally handing it to the tenant. The landlord will then need to wait 18 days without receiving a legally appropriate response from the
tenant before the landlord may deem the premises formally "abandoned" and take possession of the premises. If the tenant wishes to avoid having the
landlord recover possession of the premises in this fashion, within the 18 day period from the date of the mailing of the notice (not counting the day of
mailing) the tenant must make sure that the landlord actually receives a written notice from the tenant stating that the tenant (1) does not intend to
abandon the real property, and (2) provide an address at which the tenant may be served by certified mail with an action for Unlawful Detainer. Also, the
property will not be deemed to be abandoned if the tenant pays to the landlord – and the landlord accepts - all or a portion of the rent due and unpaid on the real property. Consult with legal counsel before proceeding.
Obviously, because of the great latitude in interpretation of whether the landlord initially was correct in forming a "reasonable" belief of
abandonment of the premises based upon the many factors set forth above, this method is described as the "middle of the road" approach. In the
appropriate factual circumstances, the service of the "Notice of Belief of Abandonment of Real Property" may also be served at the same time as a "Three
Day Notice to Pay Rent or Quit", a "Three day Notice to Perform Covenant or Quit", or even during the processing of the lawsuit for Unlawful Detainer.
A "Notice of Belief of Abandonment of Real Property" may be obtained from my office.
75 MPH = TAKING POSSESSION RIGHT NOW:
As with driving on the freeway at 75 mph and risking increased exposure to traffic accidents and speeding tickets, this method exposes the
landlord to a higher risk of being sued by the tenant for prematurely and allegedly wrongfully recovering possession of the premises without the tenant's
permission. When the landlord utilizes this approach, and has not exercised the right to judicial intervention with a lawsuit for Unlawful Detainer of the
proper service of the "Notice of Belief of Abandonment of Real Property", the landlord must be thoroughly certain - and even this may not be enough that the tenant has indeed "abandoned" the premises.
Frankly, this approach should not be utilized without first speaking with an attorney who is knowledgeable in landlord-tenant matters, with
whom you will assess the risks of being sued by the particular tenant with whom the landlord is dealing. To those readers who are already in the process
of a lawsuit for Unlawful Detainer, in the absence of unusually extreme circumstances, it is generally recommended that you allow the lawsuit to run its
course, and await the Sheriff's lock out, rather than taking possession immediately.
IS THERE A SPECIFIC PERIOD OF TIME ALLOWED TO CONSIDER A RENTAL APPLICANT BEFORE MAKING A DECISION AND INFORMING THE APPLICANT?
A prospective renter said that I had only 24 hours to inform him after running a credit check.
There is no statutory or appellate authority that requires a prospective property manager or landlord to render a decision as to whether or not to accept a particular applicant within any specified time period. Nevertheless, if the landlord has made a promise to notify the tenant by a certain time, that promise must be honored or the landlord may be sued by the tenant for breach of contract. Every landlord has a goal of accepting the most qualified tenant possible. Accordingly, to find just the right tenant, it may take an extended period of time before a landlord is able to obtain someone who meets the landlord's minimum qualifications. It would be wise, however, for the landlord to be sensitive to the possibility that waiting an extended period of time and accepting numerous applications for tenancy may be perceived by a judge or a jury to merely be a subterfuge for attempted discrimination against protected classifications of individuals. Accordingly, the landlord should prepare a written qualification policy in advance of the tenant screening process identifying the minimum tenancy requirements. Copies should be kept of any and all applications presented, and the landlord should be prepared to explain and respond to any inquiry or claim of discrimination.
OTHER TENANTS IN THE APARTMENT BUILDING WHERE I LIVE MAKE A LOT OF NOISE AT HOURS. IS THERE A LAW AGAINST SUCH BEHAVIOR?
Most apartment complexes in this area have taken precautionary measures to utilize the provisions of standard written rental agreements with their tenants. An important typical covenant for tenants to perform is not to cause or maintain a "nuisance" on or about their unit as well as the common areas of the apartment complex. Whether the offensive activity occurs during the day or night, a nuisance is generally defined as a substantial and unreasonable interference with the use and enjoyment of another's property. Whether a particular tenant or that tenant's guests or invitees have engaged in or are engaging in such disturbing behavior, for the benefit of the entire apartment community, it is a matter of vital concern to the owner and property managers. You should immediately notify the manager as to the circumstances of the offending conduct. After consultation with an attorney, if the manager should decide to initiate eviction proceedings against the violating tenant, in the event of court action, the court will typically need to know from you the who, what, where, and when of the misconduct. If you are not precise and well documented in your presentation at court, or if you are unwilling to testify in court, the odds are that the accused tenant will prevail and be permitted by the court to remain in the premises. If the conduct is severe enough you would be wise to seek police assistance for disturbing the peace of the community. Of course, the setting and context of the action would be significant in the officer's determination of whether to conduct an arrest for disturbance of the peace.
I WOULD LIKE TO CHANGE THE TERMS OF THE LEASE WITH MY TENANT TO INCREASE THE MONTHLY RENT AND TO HAVE HER BE RESPONSIBLE FOR THE UTILITY BILLS.
What type of notice is necessary?
Only in tenancies on a month-to-month basis or less, and situations where the lease will be expiring in thirty days, may a landlord exercise the right to raise the rent or make other legal, non-discriminatory and non-retaliatory changes to the terms of the tenancy. To legally change the terms of the tenancy the landlord must give written advance notice to the tenant of the intended changes at least as long as the term of the tenancy. For instance, on a month-to-month tenancy, the landlord must provide the notice at least thirty days before the intended date of the change of terms. A new law that went into effect on January 1, 2001, states that if a landlord wishes to raise the rent to an amount greater than 10% of the then existing monthly rental rate, the landlord must give at least sixty days notice of rent increase. This sixty day notice of rent increase to an amount greater than 10% may now be served by first class mailing rather than in the previously limited way of either personal service, substituted service or by posting and mailing. If a mailing is the method chosen for notifying the tenant of the intent to increase rent, the landlord must add an additional five days to the sixty days before the rent increase will go into effect. You should also note that if in the last twelve months (prior to the effective date of the increase) the landlord has raised the rent at all, if the combined amount of the rent increase is greater than 10%, then the sixty day plus five day requirement applies. If the landlord wishes to raise the rent to an amount that is 10% or less, the notice must also be in writing; this notice may be served by either personal delivery upon the tenant or by first class mailing. If the method of notice is by mailing, an additional five days must be added to the thirty day period for the notice to be effective.
Subject to the sixty plus five day period that is discussed above for situations where the landlord intends to raise the rent to an amount greater than 10% of the then existing rent, or the thirty plus five day period where the landlord intends to raise the rent to an amount of 10% or less, many landlords have the mistaken belief that the "non-rent increase" Notice of Change of Terms of Tenancy may be merely mailed to the tenant; however, to be legally enforceable, the written notice must be served upon the tenant in the same manner as a Three Day Notice to Pay Rent or Quit; namely, by personal delivery; substituted service (handing a copy of the Notice of Change of Terms of Tenancy to someone of suitable age and discretion at the tenancy address or the tenant?s business address, and thereafter mailing a copy by first class mail to the tenancy address); or by posting a copy of the notice in a conspicuous place at the tenancy premises - usually the front door - and thereafter mailing a copy by first class mail to the tenancy address.
See the Code Section: Civil Code Section 827:(a) Except as provided in subdivision (b), in all leases of lands or tenements, or of any interest therein, from week to week, month to month, or other period less than a month, the landlord may, upon giving notice in writing to the tenant, in the manner prescribed by Section 1162 of the Code of Civil Procedure, change the terms of the lease to take effect, as to tenancies for less than one month, upon the expiration of a period at least as long as the term of the hiring itself, and, as to tenancies from month to month, to take effect at the expiration of not less than 30 days, but if that change takes effect within a rental term, the rent accruing from the first day of the term to the date of that change shall be computed at the rental rate obtained immediately prior to that change; provided, however, that it shall be competent for the parties to provide by an agreement in writing that a notice changing the terms thereof may be given at any time not less than seven days before the expiration of a term, to be effective upon the expiration of the term. The notice, when served upon the tenant, shall in and of itself operate and be effectual to create and establish, as a part of the lease, the terms, rents, and conditions specified in the notice, if the tenant shall continue to hold the premises after the notice takes effect.
(b) (1) In all leases of a residential dwelling, or of any interest therein, from week to week, month to month, or other period less than a month, the landlord may increase the rent provided in the
lease or rental agreement, upon giving written notice to the tenant, as follows, by either of the following procedures:
(A) By delivering a copy to the tenant personally.
(B) By serving a copy by mail under the procedures prescribed in
Section 1013 of the Code of Civil Procedure.
(2) If the proposed rent increase for that tenant is 10 percent or less of the rental amount charged to that tenant at any time during the 12 months prior to the effective date of the increase, either in and of itself or when combined with any other rent increases for the 12 months prior to the effective date of the increase, the notice shall be delivered at least 30 days prior to the effective date of the increase, and subject to Section 1013 of the Code of Civil
Procedure if served by mail.
(3) For an increase in rent greater than the amount described in paragraph (2), the minimum notice period required pursuant to that paragraph shall be increased by an additional 30 days, and subject to Section 1013 of the Code of Civil Procedure if served by mail. This paragraph does not apply to an increase in rent caused by a change in a tenant's income or family composition as determined by a recertification required by statute or regulation. (c) If a state or federal statute, state or federal regulation, recorded regulatory agreement, or contract provides for a longer
period of notice regarding a rent increase than that provided in subdivision (a) or (b), the personal service or mailing of the notice shall be in accordance with the longer period.
California Code Of Civil Procedure Section 1013
(a) In case of service by mail, the notice or other paper shall be deposited in a post office, mailbox, subpost office, substation, or mail chute, or other like facility regularly maintained by the United States Postal Service, in a sealed envelope, with postage paid, addressed to the person on whom it is to be served, at the office address as last given by that person on any document filed in the cause and served on the party making service by mail; otherwise at that party's place of residence. The service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California, 10 calendar days if either the place of mailing or the place of address is outside the State of California but within the United States, and 20 calendar days if either the place of mailing or the place of address is outside the United States, but the extension shall not apply to extend the time for filing notice of intention to move for new trial, notice of intention to move to vacate judgment pursuant to Section 663a, or notice of appeal. This extension applies in the absence of a specific exception provided for by this section or other statute or rule of court.
(b) The copy of the notice or other paper served by mail pursuant to this chapter shall bear a notation of the date and place of mailing or be accompanied by an unsigned copy of the affidavit or
certificate of mailing. (c) In case of service by Express Mail, the notice or other paper must be deposited in a post office, mailbox, subpost office, substation, or mail chute, or other like facility regularly maintained by the United States Postal Service for receipt of Express Mail, in a sealed envelope, with Express Mail postage paid, addressed to the person on whom it is to be served, at the office address as last given by that person on any document filed in the cause and served on the party making service by Express Mail; otherwise at that party's place of residence. In case of service by another method of delivery providing for overnight delivery, the notice or other paper must be deposited in a box or other facility regularly maintained by the express service carrier, or delivered to an authorized courier or driver authorized by the express service carrier to receive documents, in an envelope or package designated by the express service carrier with delivery fees paid or provided for, addressed to the person on whom it is to be served, at the office address as last given by that person on any document filed in the cause and served on the party making service; otherwise at that party' s place of residence. The service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after the service of the document served by Express Mail or other method of delivery providing for overnight delivery shall be extended by two court days, but the extension shall not apply to extend the time for filing notice of intention to move for new trial, notice of intention to move to vacate judgment pursuant to Section 663a, or notice of appeal. This extension applies in the absence of a specific exception provided for by this section or other statute or rule of court.
(d) The copy of the notice or other paper served by Express Mailor another means of delivery providing for overnight delivery pursuant to this chapter shall bear a notation of the date and place of deposit or be accompanied by an unsigned copy of the affidavit or certificate of deposit.
(e) Service by facsimile transmission shall be permitted only where the parties agree and a written confirmation of that agreement is made. The Judicial Council may adopt rules implementing the service of documents by facsimile transmission and may provide a form
for the confirmation of the agreement required by this subdivision. In case of service by facsimile transmission, the notice or other paper must be transmitted to a facsimile machine maintained by the person on whom it is served at the facsimile machine telephone number as last given by that person on any document which he or she has filed in the cause and served on the party making the service. The service is complete at the time of transmission, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended, after service by facsimile transmission, by two court days, but the extension shall not apply to extend the time for filing notice of intention to move for new trial, notice of
intention to move to vacate judgment pursuant to Section 663a, or notice of appeal. This extension applies in the absence of a specific exception provided for by this section or other statute or rule of court.
(f) The copy of the notice or other paper served by facsimile transmission pursuant to this chapter shall bear a notation of the date and place of transmission and the facsimile telephone number to which transmitted or be accompanied by an unsigned copy of the affidavit or certificate of transmission which shall contain the facsimile telephone number to which the notice or other paper was transmitted.
MY RESIDENTIAL TENANT HAS DEMANDED THAT I INSTALL A SEPARATE TELEPHONE LINE FOR HIS INTERNET USE, AM I REQUIRED TO DO SO?
California law requires that a residential landlord is responsible for installing and maintaining at least one usable telephone jack and for placing and maintaining the inside telephone wiring in good working order. Thus, the answer is "no." Nevertheless, if you are willing to allow your tenant to have an additional telephone line installed, I recommend that you prepare a written agreement that provides permission for the tenant to have the installation done only by a licensed contractor who has your approval, or a phone company employee. The agreement should also state that the tenant will be exclusively responsible for the costs of installation as well as restoration of the premises without any damage caused by the installation. Make sure that the tenant signs the agreement before any work is commenced
MY RESIDENTIAL TENANT HAS DEMANDED THAT I INSTALL A SEPARATE TELEPHONE LINE FOR HIS INTERNET USE, AM I REQUIRED TO DO SO?
California law requires that a residential landlord is responsible for installing and maintaining at least one usable telephone jack and for placing and maintaining the inside telephone wiring in good working order. Thus, the answer is "no." Nevertheless, if you are willing to allow your tenant to have an additional telephone line installed, I recommend that you prepare a written agreement that provides permission for the tenant to have the installation done only by a licensed contractor who has your approval, or a phone company employee. The agreement should also state that the tenant will be exclusively responsible for the costs of installation as well as restoration of the premises without any damage caused by the installation. Make sure that the tenant signs the agreement before any work is commence
The answers to the "Frequently Asked Questions" do not constitute legal advice, nor does the reading of this information create an attorney client relationship with the reader. For proper application of the information contained in these articles, you are advised to seek the assistance of an attorney whose practice emphasizes landlord-tenant law.