California: What Is An Unlawful Detainer?

California: What Is An Unlawful Detainer?
California: What Is An Unlawful Detainer?

An unlawful detainer is a lawsuit that a landlord brings against a tenant when the tenant unlawfully remains on the property after a proper termination of his or her tenancy.

See also: How long does it take to evict a tenant in California?

Is That The Same As A Squatter?

A “squatter” is typically a person who enters a property without permission and lives there for a period of time. They are essentially just trespassers. You can use the unlawful detainer process to evict a squatter, but most unlawful detainer defendants were once lawful tenants. Unlike former tenants, squatters may often be evicted by “forcible detainer.” A forcible detainer has serious consequences for defendants, including criminal charges, statutory penalties, and “treble” damages (a penalty of three-times the amount of monetary damages suffered by the landowner).

What Are The Laws Regarding Eviction For Residential Landlords?

The most common type of unlawful detainer is an unlawful detainer based on non-payment of rent. It’s a situation where a landlord and a tenant have an agreement in place whereby the landlord will allow the tenant to occupy the property in exchange for payment of rent. When a tenant defaults on that agreement by failing to pay, a landlord would serve “a three day notice to pay or quit.” It is just a simple, one-page form where the landlord identifies the amount of rent that is currently due and demands that the tenant pay that amount within three days or the tenancy will be terminated. If the tenant doesn’t leave after the expiration of three days and does not pay the amount stated in the notice, the landlord can proceed with filing an eviction lawsuit, also called an unlawful detainer.

Landlords must be very careful when preparing and serving 3-day notices. Overstatement of rent by even a tiny amount will usually mean the tenant/defendant will prevail. Landlords typically exclude late fees and interest from the 3-day notice to reduce the chance of making a mathematical error.

Do Commercial Landlords Have To Follow The Same Legal Procedure?

Residential tenants facing an unlawful detainer have much more powerful rights than commercial tenants. The rationale is that residential tenants typically have less bargaining power and sophistication than their commercial counterparts. As such, a commercial landlord can serve an estimated amount of rent when they serve their 3-day notices to quit. The standard is also different because commercial leases typically have Common Area Maintenance (or “CAM”) expenses added as additional rent, and require annual rent increases based on economic indices. These considerations make it impractical to require a commercial landlord to state a precise amount of rent in their 3-day notices.

See also: Why You Should Hire A Landlord Attorney

What is a “tenancy” and why does it matter?

In the unlawful detainer context, the word “tenancy” is generally used to describe a situation where someone is in physical possession of another person’s property. There are several different types of tenancies and determining which applies is a critical first step in planning for an unlawful detainer. The procedures a landlord must follow vary drastically depending on the type of tenancy involved. The most common types of tenancies are discussed below.

Fixed-Term Tenancy: When a tenant is allowed possession of property for a specified amount of time (i.e., a one-year lease term).

Periodic Tenancy: This is your typical “month-to-month” lease arrangement where there is no specific end date for the tenancy.

Tenancy at Will: When someone enters the property of another with permission and stays there without any specific agreement as to payment of rent and for an indefinite term. For example, a friend sleeping on your couch or a family member who moves in to help around the house. Tenants at will can pay the owner rent and remain tenants at will as long as there is no fixed amount of rent and no fixed due date. Otherwise, they will become periodic tenants.

Tenant at Sufferance: A tenancy at sufferance is created when a person enters property with permission, but that permission expires or has been revoked. For example, if you get sick of your couch-surfing friend and s/he does not leave after you’ve asked them to. It can also happen when a tenant remains at the property after the expiration of a fixed term that is not renewed by the landlord.

I’m a victim of domestic violence, how do I end my lease without ruining my credit?

California: What Is An Unlawful Detainer?
California: What Is An Unlawful Detainer?

The California legislature enacted laws to encourage and empower victims of domestic violence, stalking, sexual assault, human trafficking, and elder abuse to get away from their perpetrators without risking financial disaster.

A landlord is required to terminate the lease if the victim provides a written notice that states s/he intends to terminate the least and attaches one of the following to the notice:

  1. a copy of a temporary restraining order, emergency protective order, or a protective order issued by law enforcement or another government agency (such as adult protective services);
  2. a police report showing a complaint of domestic violence, stalking, sexual assault, human trafficking, or elder abuse; or
  3. treatment records or reports from a doctor, counselor, or social worker showing treatment for or complaints of domestic violence, stalking, sexual assault, human trafficking, and elder abuse.

See also: Eviction: What Not to Do When Evicting a Tenant.

For more information on Unlawful Detainer In California, a free consultation is your best next step. Get the information and legal answers you’re seeking by calling (888) 441-2355 today.

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