Home For Lease
This article is intended to be a general discussion only, and should not be considered legal or real estate advice. Your use of it does not create either an attorney-client or broker-client relationship. Any liability that might arise from your use or reliance on this article, or any of its links, is expressly disclaimed. This blog is not legal, real estate, loan, accounting or tax advice, and is not to be acted on as such, it was outdated the moment it was written, and is subject to change without notice. If you are dealing with a potential problem with your investment property you are advised to retain the appropriate licensed professional. This article is not meant to apply to a rent controlled area in which special rules may apply.
As you read this article keep in mind that it was written for the owners of property located in the State of California. This is critically important because state statutes, case law, and public policies can vary widely from state to state.
If you are an absentee owner who has decided to manage your own property it’s best you thoroughly familiarize yourself with the territory. This serialized blog is an attempt to identify at least some of the potentially serious issues faced by an inexperienced owner.
ADVANCE WRITTEN NOTICE
Generally, to end an oral periodic rental agreement the tenant must give the landlord the same amount of notice as there are days in the rent period. So, if rent is paid every month, at least a month’s advance notice must be given.
If the rental agreement is in writing then the amount of notice is controlled by the writing. For example, if the rent is paid every month, but the rental agreement calls for 45 days written notice then notice must be given as required in the document. (Civil Code section 1946).
30 Day Notices
Typically a landlord may give 30 days advance written notice ending a month-to-month tenancy under the following circumstances:
- The current tenancy has lasted for less than a year;
- The landlord is selling the unit to a buyer who intends to occupy it for at least a year after the current tenancy ends and all of the following is true: (a.) An escrow has been opened; (b.) The 30 day notice was given no later than 120 days after opening escrow; (c.) The rental property is capable of being sold as a separate property; and,(d.) The landlord must not have given a previous 30 or 60 day notice.
60 Day Notices
Typically, a 60 day advance written notice is required if the current tenancy has lasted a year or more. For example, if a tenant had a one year lease which defaulted to a month-to-month tenancy after the passage of a year, the landlord must give a 60 day notice to end the tenancy. However if the conditions stated in (2) above are satisfied the landlord is permitted to give a 30 day written notice.
Vacating According To The Notice
The tenant must vacate the rental property by the end of the last day of the notice. In other words on the 30th day or 60th day respectively. The first day after the date of the notice is considered the first day. So, for a 30 notice dated January 1, January 2 is considered the first day of the notice.
Service of Notices
The accepted methods of service are set forth in Code of Civil Procedure, section 1162. These methods are:
- Personal Service;
- Substituted Service; and
- Posting and Mailing.
TERMINATION OF THE TENANCY FOR CAUSE
The 3 Day Notice
Generally, a landlord need not state a reason in order to terminate a tenancy by either 30 day or 60 day notice. A landlord can however, serve the tenant with a 3 day notice if one or more of the following events has occurred: (Code of Civil Procedure, section 1161)
- The tenant hasn’t paid the rent.
- The tenant has damaged the rental property in a material way.
- The tenant has violated a lease provision.
- The tenant is or has interfered with other tenants.
- The tenant is or has used the premises for an unlawful purpose. (Civil Code, section 1946.7)
- The tenant has engaged in unlawful conduct involving weapons or ammunition. (Civil Code, section 3485)
- The tenant is engaged in drug dealing or unlawfully used, cultivated, imported or manufactured illegal drugs.
- The tenant has committed domestic violence, sexual assault against, or stalked another tenant in the premises.
The 3 day notice must be served in accordance with the provisions of the Code of Civil Procedure, section 1162.
If the 3 day notice has been served because of a failure to pay rent the notice must state certain specified information including the amount of rent due, the identity, and the location of who to pay. If the 3 day notice is being issued for one of the other reasons it must describe the reason.
It should be noted that landlords can’t demand rent payment in cash unless the tenant has given the landlord a dishonored (bad) check within the last three months. If this has occurred the landlord must give the tenant a written notice advising that the tenant’s rent check was dishonored (copy of the check attached) and that the rent must be paid in cash for a stated period of time not to exceed three months. If the notice changes the terms of the lease agreement then the notice must give the required advance notice.
Unlawful Detainer Actions
If the tenant fails to either correct the problem or vacate the premises within the 3 days the landlord has the option of brining an unlawful detainer action. In general an unlawful detainer action is an expedited matter allowing the tenant only 5 days file an answer to the landlord’s summons and complaint (Code of Civil Procedure, section 1167.3). The matter can be heard as quickly as 20 days after the tenant or landlord files a request to set case for trial (Code of Civil Procedure, section 1170.5).
The landlord must use only the judicial process to evict the tenant and cannot resort to self-help measures to force the tenant out. If the court rules in favor of the landlord it will issue a writ of possession which instructs the sheriff to remove the tenant from the rental unit. Generally such a writ will give the tenant 5 days from the service of the writ to leave voluntarily.
If the tenant fails to vacate, the sheriff physically remove the tenant and lock him out. The tenant’s property which is still inside the unit will be seized by the sheriff. Landlords do not have a right to possession of the rental, unless and until the tenant vacates or is removed by the Sheriff.
Unnamed individuals who have moved into the premises with the tenant can be included in the eviction action.
Landlords may also be awarded unpaid rent, damages, court costs, in appropriate circumstances attorney’s fees even punitive damages. A failure to find a timely answer to the landlord’s complaint may result in a default judgment.
There is a lot of important detail missing from this cursory discussion and if you are thinking about either evicting a tenant or are facing an eviction you should immediately consult with an attorney.
JUMP TO OTHER CHAPTERS
- LANDLORDS – Table of Contents LANDLORDS – A hyperlinked Table of Contents designed to connect you to the blog entries which comprise the various chapters of the Landlords…
- LANDLORDS – Chapter 1, Discrimination Chapter 1 of a serialized virtual book discussing the issues which must be faced by absentee owners attempting to manage their own properties in California.
- LANDLORDS – Chapter 2, Rental Agreements and Leases Do You Use a Written or an Oral agreement and should it be a Lease or Peridic Rental Agreement?
- LANDLORDS – Chapter 3, Disclosures Discussion of various landlord disclosures which may be required prior to the signing of the lease.
- LANDLORDS – Chapter 4, Disclosures The process and considerations surrounding the deductions from security deposits.
- LANDLORDS – Chapter 5, Refunding Security Deposits The issues involved in refunding security deposits.
DO THE RESEARCH FIND THE ANSWERS
- Full Service Property Management In Orange County California A informative website presented by OC Property Management providing usefull information to both landlords and tenants.
- RISMedia Media Center Video presentations of timely real estate topics.
- Real Estate Today Radio The premier online real estate radio station.
OC Property Management & Sales, Inc.
DRE Lic# 01886215
This article is intended to be a general discussion only, and should not be considered legal or real estate advice. Your use of it does not create either an attorney-client or broker-client relationship. Any liability that might arise from your use or reliance on this article, or any of its links, is expressly disclaimed. This blog is not legal, real estate, loan, accounting or tax advice, and is not to be acted on as such, it was outdated the moment it was written, and is subject to change without notice. If you are dealing with a potential problem with your investment property you are advised to retain the appropriate licensed professional.