This article explains the meaning of a tenancy at will in California, and the required procedures to be followed by the landlord when terminating the tenancy at will.
What is a Tenancy at Will in California?
A “tenancy at will” is an estate which confers a right to the possession of premises leased for an indefinite period as both parties shall determine such possession shall continue. The tenant at will is in possession by right with the consent of the landlord either express or implied. His estate is a leasehold and he holds in subordination to the title of the landlord.” Covina Manor, Inc. v. Hatch (1955) 133 Cal. App. 2d Supp. 790, 792–93.
Simply put, someone who has no lease and occupies the premises with the owner’s consent is a tenant at will. Miller v. Elite Ins. Co. (1980) 100 Cal.App.3d 739. Further, a tenancy at will exists where both owner and tenant live on the property under an implied agreement that both had the right to possess the property jointly. Daluiso v. Boon (1969) 71 Cal.2d 484, 501. The relationship is deemed to be “at will” because, there being no stated term or rent payment provision, it is terminable “at the will” of either party (usually, the landlord’s will).
Tenant at Will Eviction Procedure in California
California Civil Code Section 789 governs tenancy at will evictions. It provides that a tenancy at will “may be terminated by the landlord’s giving notice in writing to the tenant, in the manner prescribed by Section 1162 of the Code of Civil Procedure, to remove from the premises within a period of not less than 30 days, to be specified in the notice.”
Thus, in order to evict a tenant at will, the landlord must first serve a 30 day notice to vacate that complies with the service of process procedures set forth in Code of Civil Procedure section 1162. Specifically, the notice must be served by personal delivery to the tenant, by substitute service, or by “posting and mailing”. Substitute service is effectuated when the landlord personally delivers the notice to someone “of suitable age” at the premises, and by sending a second copy to the tenant by regular mail.
After successful service of the notice to quit tenancy and after waiting the period prescribed in the notice to vacate, the landlord must then institute an unlawful detainer proceeding to evict the tenant at will if he or she refuses to leave. A landlord must follow the unlawful detainer procedure prescribed in the California Civil Code in order to evict a tenant at will who refuses to leave. After service of the summons and complaint is completed, the tenant has five court days to file a response with the court and serve the response on the landlord.
Thereafter the matter will be set for trial, and the court will enter judgment after completion of the trial. If the landlord wins, the court will issue a writ of possession allowing the landlord to obtain possession of the premises pursuant to the court order.
Lynx Legal Service is here to answer any questions regarding the above issues, or any other questions you may have on evictions. Please feel free to contact us at 888-441-2355 or [email protected] with any questions or if you would like to start a case.