The eviction process, or as it is often referred to, the unlawful detainer process, has many moving parts. This article was intended to go over the eviction process basics and the steps and terms that your attorney may discuss with you. It’s important to mention to you that I am not an attorney, but I feel like explaining the terms used by the legal system can make understanding the unlawful detainer experience much easier.
Every property manager or owner has the potential to go through the eviction process. It can be both a financial hardship and extremely stressful process. I have had to evict tenants from my own investment property. They responded the lawsuit and I had no other choice but to go to court. So, I understand what you may be going through and I can totally relate to the situation you are in.
You may find yourself staying up all night worrying about “doing” or “saying” the wrong thing. Going to the grocery store may be getting more and more difficult since your tenants stopped paying rent. Your mortgage payments are becoming overdue without receiving rental income and on top of that, you may also have to pay the legal expenses. I’m sure you may have heard many nightmare eviction stories and you have been making yourself sick thinking all of this will happen to you. You have lost control and must react to the tenant’s actions at this point. I have learned, over the course of my lifetime, that worrying actually works. 90% of everything that I worry about never happens.
Try to live your life as simply as possible and contact your legal counsel. Let a professional deal with the matter.
The Eviction Process Basics
The first step of understanding the eviction process basics is to have a “cause of action.” This could be the your tenant failing to comply to the notice you served them. The most common notices that I see are:
- 3 day notice to pay rent or quit
- Notice to perform covenant
- 30 or 60 or 90 day notice to terminate tenancy
There are many more other types of notices. The “cause of action” is whatever notice the tenant fails to comply with.
Filing an Unlawful Detainer
Once the landlord files the unlawful detainer paperwork for eviction with the court, they must serve the lawsuit on the tenants, also known as the defendant in the case. From the date of service of notice, the tenant has five days to file a response pleading with the court.
If you have filed a prejudgment claim with your case, then you must allow an additional five days for the tenant to respond to the lawsuit. What is a pre judgment claim? This is a default which covers all unknown occupants of the property.
Scenario: if the tenants allow an adult third party onto the property and you have not filed a pre-judgement claim, then that unnamed person may not have to vacate during the sheriff’s lock out.
If your tenants are evading service of the unlawful detainer complaint, you might need to secure a Posting Order. A Posting Order is a judicial directive permitting the posting of paperwork at the property instead of serving the tenants. Obtaining this order necessitates a judge’s signature, leading to additional time for the process. Subsequently, an extra five days are provided for the tenant’s response.
After the 5, 10 or 15 day waiting period has expired, there are two possible outcomes:
Go to trial
The tenant files an answer and you must request a trial to be set.
You need to file a default against the tenant, which results in a judgment and the issuance of a possession order. A default judgment is akin to the opposing team not appearing for the game, and the umpire declaring a winner due to the other team forfeiting the game. This is the same concept, but the court clerk is the umpire. This is also known as a “clerk’s judgment.”
The order for possession, or the “writ of possession” is like Willy Wonka’s Golden Ticket—It is the order that the Sheriff needs to lock the tenants out of your property and one of the last parts of the eviction process basics. The Court Clerk issues this writ of possession, and subsequently sends it, along with lockout instructions, to the sheriff. Following the posting of an initial five-day notice on the subject property, the sheriff then schedules the lockout date and time.
Here are some additional notes to consider while understanding the eviction process basics
- Note that Assembly Bill 2819, the Unlawful Detainer Masking law, implemented changes as of January 1, 2017. Evictions no longer appear on tenants’ credit reports, and they are no longer part of the public record. The records of eviction courts are now permanently sealed.
- Just because the Judge says the tenants must be out by a certain date does not mean the Judge can control when the sheriff schedules the lock out date.
- Also note that your tenant could file a motion at any time during the legal process to throw a monkey wrench in the eviction process. This is typically used as a stalling tactic to buy them more time in the property.
- The tenant may also file a bankruptcy to try to drag out the process for more time.
- Sometimes your legal council may suggest that you “propound discovery” on the tenants based on what was filed in the tenants answer to your lawsuit. Propounding discovery means that the tenants must answer a list of questions about the claims in their answer to your lawsuit. It also requests that the tenants provide the actual evidence to those claims prior to going to the court date. (Note: This gives your attorney a better idea of what you are up against in court and how to best defend the you against tenant’s accusations.)
- Interrogatories are a formal set of written questions propounded by one litigant and required to be answered by an adversary to clarify matters of fact and help to determine in advance what facts will be presented at trial in the case.
- A rough estimate of contested (Note: “contested” means the tenants filed an answer and want to have their day in court) cases versus uncontested (Note: “uncontested” means the tenant does not file an answer) cases is that there is a 50% chance the tenant will file an answer. Out of the 50% of cases where the tenant has filed an answer, about 10% of those are heavily litigated. When I say heavily litigated, I am talking about the tenants requesting a trial by jury, or the tenants obtaining free legal counsel to represent them. Some of the tenant advocate groups are relentless. I feel that they really enjoy the attempts to hinder, obstruct, delay, stonewall and block the proceedings just to buy time and cost the owner more money.
- Proof of Service is the court recognized document that you did exactly what you said you did on a given day by posting and mailing, personal service or sub-service. The penalty for your not being truthful is perjury, and that could mean jail time. The tenants should never have a copy of the proof of service. That is your document to share with the court.
- Every one of these steps in the eviction process takes time. Uncontested evictions in the courts take about forty days versus a contested eviction that can take about sixty to ninety days. The time depends on what actions your tenants take, what court the case is heard in, and how back logged the courts are.