Have you found yourself in the unfortunate situation where your tenant has stopped paying their rent?  Or your tenant is in breach of their lease?  Or you have simply reached the end of your fixed lease term and you do not want to renew?

If so, the number one question you must be asking yourself in this situation is “how do you (lawfully) evict your unwanted tenant?”

In order to evict a tenant for non-payment of rent or for breach of your rental lease, you must do the following:

  1. Serve a legal Notice upon your tenant(s).
    1. If you are evicting your tenant(s) for non-payment of rent, serve them with a 3-Day Notice to Pay Rent or Quit.
    2. If you are evicting your tenant(s) for breach of the lease, serve them with a 3-Day Notice to Cure the Breach.
    3. If you are evicting your residential tenant(s) for termination of a month-to-month rental agreement, you must serve them with a 30-Day Notice if they have lived at the property for less than one year, or with a 60-Day Notice if they have lived at the property for more than one year.
    4. No notice is required to be served at the end of a fixed term lease.

Assuming that the tenant(s) fail to pay the required rent, fail to cure the breach, or fail to vacate the premises after serving the appropriate notice on them, you must:

  1. File an Unlawful Detainer lawsuit to get a judicial order of eviction. As much as you may want to, you may not use “self-help” to through the tenant out (for example by changing the locks while they are out of the home).
    1. Once you file the unlawful detainer lawsuit at the courthouse, you must “serve” it on the tenant. The easiest way to handle properly serving the lawsuit is by hiring a registered process server, however any individual over the age of 18 and who is not a party to the lawsuit may serve your tenant.
    2. Once served, the tenant has a certain number of days to file an answer to the lawsuit with the court.
      1. If the tenant does not answer the lawsuit within the statutory time period, you may apply to the court for a default judgment.
      2. If the tenant does file an answer within the statutory time period, you must then request a trial. At the trial, you and the tenants will both have an opportunity to tell your sides of the story to the judge before the judge makes a decision. Assuming that you win, the court will enter a judgment in your favor.

Once you obtain a judgment against your tenant(s), you still may not use “self-help” to evict the tenant.

Once you obtain your judgement, you must then

  1. Obtain a Writ of Execution from the court clerk where the judgment was entered.
  2. Once you obtain the writ of execution, you must deliver it to the county Sheriff who will then serve it upon the tenant.
    1. If the tenant still refuses to vacate the property after the Sheriff serves the writ of execution on them, the Sheriff will schedule a “lockout” date.
    2. On the date of the scheduled lockout, you, a locksmith, and a Sheriff will arrive at the premises. After the locksmith opens the door, the Sheriff will enter the premises first to make sure it is safe. Thereafter, the locksmith will rekey the locks and the Sheriff will put a notice in the window stating that anybody who enters the premises without your permission will be subject to arrest for trespassing.

Evicting a tenant is not easy.

Serving the wrong type of notice or improperly serving the tenant(s) could cause your tenant(s) to get the entire lawsuit dismissed, forcing you to start from scratch, resulting in lost time, money, and energy, not to mention months of free rent. And evicting someone through the “self-help” method of rekeying the doors will only get you sued by the tenant in a “Forcible Detainer” lawsuit, which could result in a very large money judgment against you.

 

The Palm Desert Law Group wants to make the process of evicting your tenant as easy and efficient for you as possible. Contact us today to see how we can help you.

CategoryReal Estate Law