The Eviction Process
The eviction process, or unlawful detainer, is not simple. Every landlord/tenant dispute is unique and any mis-step can have significant financial consequences. The eviction process is designed to expedite recovery of possession of res property when a tenant has violated his lease or term(s) of the rental agreement.
Who does it apply to?
In general, everyone who pays rent, subject to a few exceptions, in order to live in a place is considered a tenant and can be evicted. If you live in a motel for less than 30 days and if you are lodger in a house with the landlord are the exceptions.
The eviction process always starts with a notice. There are many types of notices depending on the circumstances. The notice must be served on the tenant.
- 90-day Notice: If the tenant is renting under Section 8 and the terms are month-to-month, the landlord must give a 90-day notice to terminate the tenancy. There is no need to state a “cause.”
- 60-day Notice with Arbitration: If the property is under San Jose Rent Stabilization Ordinance and the tenant has lived there for over one year, the landlord must give a 90-day notice, as above, or 60-day notice with an offer to arbitrate.
- 60-day Notice: For a month-to-month tenancy that is not covered by San Jose Rent Stabilization Ordinance and the tenant has lived there for over a year, the landlord can evict for no reason at all after giving the 60-day notice.
- 30-day Notice: For a month-to-month tenancy that is not covered by San Jose Rent Stabilization Ordinance and the tenant has lived there for less than a year, the landlord can evict for no reason at all after giving the 30-day notice.
- 3-day Notice to Pay rent or Quit: If the tenant does not pay reentry the due date specified in the lease, the landlord can give a 3-day notice to pay the rent or leave – the landlord must accept the payment if it is within the 3-day period. If the tenant tries to pay the rent after the 3-day period, the landlord is under no obligation to accept the rent.
- 3-day Notice for Violation of the Lease: The landlord can you a 3-day notice to leave if you violate the terms of your lease, e.g., bring in a pet when the lease does not allow it.
Once the notice has expired, the actual legal process for eviction starts.
Summons and Complaint
Once the notice has expired, the landlord can file an Unlawful Detainer action (UD), AKA eviction case. Once you receive the court papers which are referred to as “Summons & Complaint), you have 5 days to respond. If you do not respond, you automatically lose the case.
You respond to the Summons and Complaint by filing your Answer with the court within 5 days. There is a filing fee, but if you cannot afford to pay, you can file a Fee Waiver. It is a good idea to start gathering evidence and looking for favorable witnesses.
Most cases are resolved by settlement before appearing in front of the judge. In most cases, the settlement happens right before the trial where the landlord or his representative would try to make an agreement. If you agree to the settlement, you give up your right to trial and decision by the judge.
The trial date is normally scheduled within 2 to 3 weeks after the tenant files the Answer. The landlord would generally start by presenting his case to the judge. The tenant would have the opportunity present his case and defenses, if any, to the judge. The judge, or if you opted for jury trial the jury, would decide the case.
After the Trial
If the tenant wins, the he can continue living in the apartment, assuming he pays all the back rent owed. If the landlord wins, then he can get a judgment against the tenant to get possession and back rent, his costs and attorney fees. The Sheriff will post a notice on the tenant’s door giving him 5 days to move out. Otherwise, the Sheriff will physically remove the tenant and change the locks – not a pleasant prospect.
Stay of Judgment
If the landlord wins, the tenant can ask the judge for a hardship stay of up to 40 days. The tenant must pay the rent for the requested period to the court. The bailiff will give you a copy of the application if you ask for it.