Post Judgment Eviction Procedures

This article discusses potential post-judgment activities in an eviction case where the landlord obtains a judgment of possession against the tenant.  What happens next? 

Nothing further will happen unless one of the parties takes affirmative steps to further their objectives.  For the landlord, this would mean requesting a writ of possession, which gives the Sheriff authority to physically remove occupants.  At this late stage of the proceedings the tenant has few options, which include moving out, seeking a stay, and filing for bankruptcy. 

Writ of Possession Procedure

In California, a writ of possession is an order issued by the Court to assist a property owner with recovering possession of their real (or personal) property. The purpose of a writ of possession is to enforce an unlawful detainer judgment for possession.

More specifically, after judgment has been entered, the property owner will submit a written application to the Court to request that it issue a “writ of possession.” Once issued, the writ basically gives a directive to the levying officer to take the necessary steps to lockout the occupant. The levying officer is usually the sheriff for the county where the property is located.

Thereafter, the landlord or property owner will submit the writ of possession and instructions to the levying officer to take the necessary steps to lockout the current occupant. These steps include, but are not limited to, levying the writ of possession by serving a copy of the writ on the occupants and then physically locking out the occupants if they do not leave.

Following proper service of the writ of possession, the occupants of the subject property ordinarily have five days to vacate. If the occupants do not vacate by that time, the levying officer will go the property and physically lockout the occupants subject to the judgment.  The writ of possession expires 180 days after its issuance date.

Tenant’s Post Judgment Options

Once the writ of possession is issued, the tenant has few options left to delay the eviction. 

The tenant can seek to postpone the eviction by filing an ex parte request for a “stay” of the lockout date.  When ruling on the request the court must decide whether the tenant would suffer extreme hardship if a stay was not granted, and the extent to which the landlord would be prejudiced by the stay.  In practice, most courts will grant the defendant a short extension of time before the eviction is ordered to proceed.  The maximum limit is 40 days.  See CCP 918.  Such a stay is typically conditional on the tenant paying rent in advance to cover the time period in which the stay is in effect. 

The tenant could also file for bankruptcy to cause a delay in of the lockout date. In California, filing for bankruptcy in most instances will prevent a tenant from being evicted, if the tenant files for bankruptcy before execution of the writ of possession.  Once an automatic stay has been imposed on the tenant’s creditors, it will halt proceedings for an eviction and allow the tenant to remain in their home. A landlord may request relief from an automatic stay and the bankruptcy court may lift the automatic stay if the landlord can show that he or she is entitled to such relief.

Additionally, a tenant cannot be protected by an automatic stay if the landlord’s eviction action is based on the tenant doing harm to the rental property, or the tenant using illegal controlled substances on the property.  A bankruptcy case can also be dismissed for various reasons, such as the tenant filing in bad faith or neglecting to pay fees, which would remove any delays or protections associated with the automatic stay

What About Belongings Left Behind At The Premises?

The tenants in a sheriff lockout situation cannot take more than minimal personal property with them, although they can remove their belongings anytime in the previous five days. Anything left behind remains for safekeeping by the landlord for a period of 15 days. If the tenant wants the property back, the landlord must be paid a reasonable fee for storage. If they don’t reclaim the property within 15 days, the landlord may sell it at a public sale, or if it is determined that property is worth less than $300, the landlord may keep it.

Help on any of these issues is simply a phone call or click away.  Please contact Lynx Legal Service with any inquiries you may have at 888-441-2355 or info@lynxlegal.com, or if you need help with any issues arising from an eviction that is contemplated or in progress.

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