Oct 02, 2018
What Lawyers (and Landlords and Tenants) Need to Know About Residential Evictions
Oct 02, 2018
By Greg Brockbank
NOTICES: An eviction complaint cannot be filed unless the landlord serves proper notices first (and attaches them to the complaint). The most common notice is a Three-Day Notice to Pay Rent or Quit, served on a tenant behind on the rent. Other common notices include the Three-Day Notice to Cure Covenant or Quit (when a tenant is violating the lease in some other way), and, of course, the 30-Day (or 60-Day, for tenancies of more than one year) Notice to Quit, used when a landlord wants to evict a tenant who is on a month-to-month rental agreement who is not behind on the rent or otherwise violating the lease. Landlords or property managers usually do these notices themselves, but often hire attorneys to “draft” the complaint.
UNLAWFUL DETAINER (UD) COMPLAINT: Like most complaints these days, this is a multi-page, fill-in-the-blanks-and-check-the-boxes form approved by the Judicial Council of California. It lays out all the needed allegations, and usually a copy of the lease is attached to it, along with the required notice, and the proof of service of that notice. Other forms needed for this initial filing include a special summons, which is Judicial Council Form SUM-130, and a Civil Case Cover Sheet.
ANSWER TO UNLAWFUL DETAINER (UD) COMPLAINT: The Answer is a similar form, in which the tenant responds to the allegations in the UD Complaint by listing the numbers of the paragraphs that the tenant admits or denies. Unlike most complaints, which have a 30-day period in which to answer, a UD Complaint must be answered within five days of being served in order to avoid having a default taken. Other defenses often listed include uninhabitability of the premises, discrimination, and retaliation.
REQUEST FOR A TRIAL DATE: Another difference from most lawsuits is that there is rarely any discovery in an eviction lawsuit; a landlord's attorney usually requests a trial date immediately after the Answer is filed, almost regardless of what the Answer says. And still another difference from most lawsuits is that a trial must be set within three weeks of the request, instead of the many months it takes in most lawsuits.
DEFAULT FORMS: If the tenant fails to file an Answer within the five days, the landlord can file a Request for Entry of Default, which means the tenant is thereafter prohibited from filing any further response and the landlord automatically wins. The landlord's attorney also files a Judgment and a Writ of Execution (these two forms would also be needed after the trial if the tenant does answer the complaint, unless the tenant wins at trial). He also gives the Sheriff a letter of instructions (on the sheriff office's form, which you can get at the window in their office at 1600 Los Gamos Drive off Lucas Valley Road), and a final Five-Day notice is then promptly posted on the tenant's door, at the end of which period the tenants are bodily removed by the Sheriff (if they haven't already vacated the premises, which they usually have) while the Landlord or his locksmith changes the locks.
SETTLEMENT: Like most lawsuits, the vast majority of these cases are settled, in recent years in Marin at a mandatory settlement conference usually held the afternoon before trial. Although this may well add $1000 or so to a landlord’s legal fees, it avoids having to prepare for trial (where cases usually settle anyway). In fact, nearly all cases settle at this stage, resulting in a several-page written agreement. Usually the terms revolve around two major issues: when the tenant moves out, and how much money is paid (and when). Sometimes a landlord is primarily interested in getting the tenant out right away and is willing to waive some or all of the past due rent. In other cases, landlords want every penny of the rent due from the tenant, plus all their costs and attorney fees as well – although it is often hard to collect any money at all, even with a court judgment.
FILING FEES AND ATTORNEY FEES: Fees to file both the UD Complaint and the Answer vary, depending on the amount of past due rent, but usually are $240 and $225, respectively. Attorney fees, from the initial consultation, to form preparation, to settlement negotiations, to court appearances, are usually charged at $300-$400 per hour here in Marin at present, and may take anywhere from an hour to advise a landlord or tenant on how to represent themselves in their case, to 5-10 hours to represent them and draft and file papers, and appear in court as necessary.
VOLUNTEER TO PROVIDE LEGAL ASSISTANCE: Now that you lawyers out there know how to handle an eviction case, you can try your hand by volunteering for Legal Aid of Marin to provide legal advice and negotiate settlement at the UD settlement conferences. Or volunteer through MCBA’s “Lawyers in the Library” program, giving (usually) low-income residents free 20-minute consultations in the Law Library at 20 No. San Pedro Road in San Rafael every other Thursday afternoon (sign up in advance), on a wide variety of topics, including landlord-tenant law. Both of these programs need more landlord-tenant attorneys.
Landlord-tenant law has been a major focus of Marin Law Center owner Greg Brockbank for most of his 33 years of legal practice, and he has provided advice and representation to hundreds of tenants and landlords – mostly in Marin .