In California and elsewhere an eviction is the most common method of regaining possession of real property unlawfully occupied by another.  There are, however, other recognized ways to regain possession of a dwelling including pursuit of an ejectment action against the occupant.  This article highlights the differences between the respective actions and the importance of choosing the correct legal remedy when faced with an occupant who refuses to voluntarily leave. 

Overview of an Eviction Action

An eviction action, (called “unlawful detainer” in California) is a legal action by which a landlord regains possession of real property by following specific procedural and substantive laws set forth in the California Civil Code and Code of Civil Procedure.  In most cases, a landlord can only evict a tenant for specific legal reasons, such as failure to pay rent or a violation of the terms of the lease or rental agreement.

The eviction process begins when the landlord serves the tenant with a notice to vacate, specifying the reason(s) for the eviction and the date by which the tenant must vacate the property. If the tenant does not comply with the notice, the landlord may file an eviction lawsuit with the court. If the court finds in favor of the landlord, it will issue an eviction order (“writ of possession”), directing the tenant to vacate the property. If the tenant does not comply with the eviction order, the landlord may ask the court to enforce the order and have the tenant removed from the property by the local police or sheriff.

Overview of an Ejectment Action

As action for ejectment arises from the common law.  It allows the plaintiff to recover possession of real property and damages against the unlawful occupants upon proof that (1) the plaintiff holds legal title to the subject property, and (2) the defendant’s possession of the subject property is wrongful. (28 Cal. Jur. 3d Ejectment and Related Remedies § 40.)  Some common examples of situations supporting an ejectment action are:

• Unwanted Occupants: When someone stays on the property without any rental agreement or lease, such as a former partner, family member, or friend.

• Disputes Over Property Rights: When there is a dispute over who holds the title or rightful ownership of the property.

• Overstaying Welcome: When a person who was initially allowed to stay on the property overstays their welcome and refuses to leave. 

• Default on Land Contracts: When a purchaser of land through owner financing defaults on the land contract1.

In these cases, the property owner can file an ejectment action to legally remove the unwanted occupant and regain possession of their property.

Eviction vs. Ejectment

Ejectments and evictions are similar in that they both are legal actions seeking possession of real property wrongfully occupied by another, but the respective actions implicate distinct legal issues and procedures.  In a typical landlord-tenant case there is a landlord and a tenant. In cases, however, where the owner is not the landlord, or the occupant is not a tenant, or both, the correct cause of action may be an ejectment. Ejectments are not landlord and tenant cases; ejectments are property law cases.  It is a regular civil action with no trial precedence.

Please contact Lynx Legal with any questions regarding the above, the eviction process or to start a new case.  We can be reached at 888-441-2355 or info@lynx legal.com.  We are standing by to assist in any way we can.