A landlord can't begin an eviction lawsuit without first legally terminating the tenancy. This means giving the tenant written notice, as specified in the state's termination statute. If the tenant doesn't move (or reform -- for example, by paying the rent or finding a new home for the dog), you can then file a lawsuit to evict. (Technically, this is called an unlawful detainer, or UD, lawsuit.)
State laws set out very detailed requirements to end a tenancy. Different types of termination notices are required for different types of situations, and each state has its own procedures as to how termination notices and eviction papers must be written and delivered ("served").
Notice for Termination With Cause
Although terminology varies somewhat from state to state, there are basically three types of termination notices for tenancies that landlords terminate due to tenant misbehavior:
- Pay Rent or Quit Notices are typically used when the tenant has not paid the rent. They give the tenant a few days (three to five in most states) to pay the rent or move out ("quit").
- Cure or Quit Notices are typically given after a tenant violates a term or condition of the lease or rental agreement, such as a no-pets clause or the requirement to refrain from making excessive noise. Usually, the tenant has a set amount of time in which to correct, or "cure," the violation. A tenant who fails to do so must move or face the possibility of an eviction lawsuit.
- Unconditional Quit Notices are the harshest of all. They order the tenant to vacate the premises with no chance to pay the rent or correct a lease or rental agreement violation. In most states, unconditional quit notices are allowed only when the tenant has:
- repeatedly violated a significant lease or rental agreement clause
- been late with the rent on more than one occasion
- seriously damaged the premises, or
- engaged in serious illegal activity, such as drug dealing on the premises.
However, in some states, landlords may use Unconditional Quit Notices for transgressions that would require Pay or Quit Notices or Cure or Quit Notices in other, more tenant-friendly states. In these strict states, landlords may extend second chances if they wish, but no law requires them to do so.
Even after receiving notice, some tenants won't leave or fix the lease or rental agreement violation. If you still want the tenant to leave, you must begin an unlawful detainer lawsuit by properly serving the tenant with a summons and complaint for eviction.
Notice for Termination Without Cause
Landlords may usually use a 30-Day or 60-Day Notice to Vacate to end a month-to-month tenancy when the tenant has not done anything wrong. Many rent control cities, however, do not allow this; they require the landlord to prove a legally recognized reason for eviction ("just cause") of tenants.
Tenant Defenses
Removal of the Tenant
If you win the unlawful detainer lawsuit, you will get a judgment for possession of the property and/or for unpaid rent. But you can't just move the tenant and his things out onto the sidewalk -- trying to remove a tenant yourself can cause a lot of trouble.
| A few states allow landlords to freely dispose of property a tenant leaves behind after moving out. Even in these states, this is legal only if it is quite clear that the tenant has left permanently, intending to turn the place over to the owner. In many states, landlords must follow storage and notification procedures. |
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Typically, you must give the court judgment to a local law enforcement officer (sheriff or marshal), along with a fee that is charged to the tenant as part of your costs to bring suit. The sheriff or marshal gives the tenant a notice that the officer will be back within a number of days to physically remove the tenant if he isn't gone by then.
For More Help | Unless you thoroughly know your legal rights and duties before evicting a tenant, and unless you dot every "i" and cross every "t," you may end up on the losing side. For help preparing and serving termination notices and the eviction summons and complaint for California properties, see The California Landlord's Law Book: Evictions, by attorney David Brown (Nolo). |
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Rationale for the Rules
Landlords often chafe at the detailed rules that they must follow. There is a reason, however, why most states have insisted on strict compliance. First of all, an eviction case is, relatively speaking, a very fast legal procedure. (How many other civil cases are over and done with after a few weeks?) The price to pay for this streamlined treatment is unwavering adherence to the rules.
Second, what's at stake here -- a tenant's home -- is arguably more important than a civil case concerning money or business. Consequently, legislators have been extra careful to see to it that the tenant gets adequate notice and an opportunity to respond.
Copyright 2008 Nolo