Commercial tenants rent property used specifically for business or commercial purposes. This is in contrast to residential tenants who rent places to live, like apartment units and other dwellings. In California, commercial tenants are afforded most, but not all of the same rental rights as residential tenants in the context of terminating the tenancy through eviction proceedings. Here are the basic steps for a commercial eviction in California.
Review The Lease Agreement
The first step in terminating a commercial tenancy is to review the terms and conditions of the written lease agreement. Commercial leases are very different from a home rental agreement, as they tend to be longer and have many additional clauses and obligations. You should review whether the lease includes a section describing the landlord’s remedies in the event the tenant breaches the lease. You should also check whether it includes any provisions relating to what constitutes proper notice under the agreement. If so, those provisions, if otherwise enforceable, will supersede any statutory requirements when agreed to and signed by all parties.
Determine What Type Of Notice Is Needed
There are several different eviction notices that can be used in California when a landlord needs to terminate a commercial tenancy. A commercial landlord may take steps to have a tenant removed from his property due to non-payment of the rent or because of a breach of the lease. He may also take steps to evict a commercial tenant who remains in his property after the lease has ended.
Commercial landlords can also use a three-day eviction notice based on the tenant’s use of the commercial rental property for an illegal purpose. A three day notice also can be utilized where use of the premises constitutes a “nuisance”, meaning it causes disturbances or concern for the safety and well-being of the other tenants and surrounding community.
Service of Notice
California law provides that notices may be served upon a commercial tenant by any of the following methods: (1) by delivering a copy to the tenant personally, (2) by leaving a copy with some person of suitable age and discretion at the property if the tenant is not home, or (3) by affixing a copy in a conspicuous place on the property, and also sending a copy through the mail addressed to the tenant, if no one is home. (See Cal. Civ. Code section 1161.)
As indicated, the lease agreement’s notice provisions will generally take precedence over the California statute if they were a product of arm’s length negotiations between the parties.
Commencement Of Formal Eviction Proceedings
After the notice expires the landlord must file an unlawful detainer complaint with the court as the next step in the eviction process. Filing an unlawful detainer complaint initiates formal eviction proceedings. The tenant must be served with a Summons and Complaint and several other forms required by law. Once the Summons and Complaint have been served, the tenant will have five court days to respond to the Complaint or vacate the property.
If the tenant fails to vacate the premises or respond to the complaint, the landlord can seek to take the tenant’s default, resulting in a judgment of possession in the landlord’s favor. If the tenant refuses to leave but responds to the complaint, the landlord must set the matter for a trial.
Trial Proceedings
The matter will be set for a trial approximately 21 days after the request has been made. The parties will then proceed to trial and the judge will resolve the issue of whether a breach occurred. The judge may also rule on any affirmative defenses asserted by the tenant. Some common defenses in a commercial eviction include lack of proper notice, retaliatory eviction, discriminatory motives/conduct and that the landlord has breached the lease agreement in some material respect. Notably, breach of the warranty of habitability is not a defense that can be used in response to a commercial eviction proceeding in California.
Issuance Of Writ Of Possession
If the landlord wins, the judge will issue a writ of possession, which needs to be presented to the local sheriff’s department for execution. The sheriff’s office will provide you with a date for the lockout, at which you or an agent needs to be present. At that time a formal lockout will occur, so its good practice to have a locksmith on hand to change the locks.
Help on any of these issues is just a click or phone call away. Please contact Lynx Legal Service at [email protected] or 888-441-2355. Our experienced eviction specialists are standing by to answer any inquiries you may have or if your ready to start a case.