What are my options if I was served with a three day eviction notice?

05/04/2009 - Category:Landlord Tenant - Lease Termination - State: CA #16557

Full Question:

My landlord served us with papers to pay rent or leave within three days. I lost my job and wanted to pay it with my tax refund. Yesterday I received a notice to vacate by 3/16/08. I have to leave by Sunday. It's impossible with 5 children and no where to go, what can I do?

Answer:

Landlords and tenants are obligated to act in good faith when performing acts under the lease agreement. The responsibilities of tenants are typically spelled out in the lease agreement and include the basic responsibility of the timely payment of rent.

If a tenant breaches the lease agreement, the landlord must serve written notice of the breach upon the tenant, describing specifically what constitutes the breach, and in many cases, stating a deadline by which the tenant must remedy the breach or the lease will be terminated. The period of notice prior to the deadline is defined by statute and varies in length depending on the severity and type of breach. If the tenant pays before the deadline, then the lease is not terminated.

In a large majority of states, self-help recovery of possession of premises has been abolished. Landlords must follow the legal processes under state law to accomplish eviction of tenants. Eviction is a legal process by which a landlord may terminate a tenant's right to remain onthe rental property. Ultimately, the tenant may be forcibly removed from the property by the sheriff or other law enforcement official once a formal court order has been obtained. Valid reasons for eviction may include failure to pay rent on time. A landlord cannot forcibly evict a tenant without proper notice. The landlord must provide written notice to the tenant of the default. If the tenant does not fix the default within a reasonable amount of time, the landlord must file for a formal court eviction proceeding, or "forcible entry and detainer" or "unlawful detainer" action. In such proceedings, a landlord may be given a monetary judgment for the amount of money owed for rent, attorney fees and costs, and may be granted a writ for possession of the premises. A writ will typically be issued a few days after the judgment, allowing the tenant the opportunity to move voluntarily. Once the writ is issued, it may be executed by local law enforcement officials (never the landlord directly) so that the tenant is removed from the rental property and then the landlord is given possession. Defenses to eviction include improper notice, acceptance of partial rent, failure of landlord to maintain the premises, retaliatory eviction and constructive eviction.

In California, a landlord can terminate a tenancy by giving the tenant three days’ written notice to pay rent or terminate if the tenant has failed to timely pay rent. To be effective, the notice must demand only the actual amount of rent due, not include any other charges than for past-due rent, and must be served properly on the tenant. If a tenant tries to pay past-due rent after the expiration of the three days, the landlord can either file an eviction lawsuit or accept payment. If the landlord accepts payment, he or she cannot evict the tenant based on late payment of rent. If the tenant decides not to make payment, then he or she should vacate the landlord’s property immediately. If the tenant does not vacate the property, he or she may be subject to a court action in superior court for eviction. Landlords may not use self-help remedies for eviction (such as locking out tenants, disconnecting utilities, or taking the tenant's belongings), or he or she may be subject to liability for the tenant's damages, as well as up to $100 per day in penalties. The landlord may bring an unlawful detainer action against the tenant to recover the unpaid rent and to obtain a writ of possession to order the sheriff to remove the tenant from the property. If the landlord files such action, the tenant will only have a short period of time (five days) to respond to the complaint. If the tenant does not file a timely written response to the landlord's complaint, the court will enter a default judgment against the tenant.

The following are California statutes:

1161 Civ. Proc.

A tenant of real property, for a term less than life, or the executor or administrator of his or her estate heretofore qualified and now acting or hereafter to be qualified and act, is guilty of unlawful detainer:

1. When he or she continues in possession, in person or by subtenant, of the property, or any part thereof, after the expiration of the term for which it is let to him or her; provided such expiration is of a nondefault nature however brought about without the permission of his or her landlord, or the successor in estate of his or her landlord, if any there be; including the case where the person to be removed became the occupant of the premises as a servant, employee, agent, or licensee and the relation of master and servant or employer and employee or principal and agent or licensor and licensee has been lawfully terminated or the time fixed for such occupancy by the agreement between the parties has expired; but nothing in this subdivision contained shall be construed as preventing the removal of such occupant in any other lawful manner; but in case of a tenancy at will, it must first be terminated by notice, as prescribed in the Civil Code.
2. When he or she continues in possession, in person or by subtenant, without the permission of his or her landlord, or the successor in estate of his or her landlord, if any there be, after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and three days' notice, in writing, requiring its payment, stating the amount which is due, or possession of the property, shall have been served upon him or her and if there is a subtenant in actual occupation of the premises, also upon such subtenant. Such notice may be served at any time within one year after the rent becomes due. In all cases of tenancy upon agricultural lands, where the tenant has held over and retained possession for more than 60 days after the expiration of the term without any demand of possession or notice to quit by the landlord or the successor in estate of his or her landlord, if any there be, he or she shall be deemed to be holding by permission of the landlord or successor in estate of his or her landlord, if any there be, and shall be entitled to hold under the terms of the lease for another full year, and shall not be guilty of an unlawful detainer during that year, and the holding over for that period shall be taken and construed as a consent on the part of a tenant to hold for another year.
3. When he or she continues in possession, in person or by subtenant, after a neglect or failure to perform other conditions or covenants of the lease or agreement under which the property is held, including any covenant not to assign or sublet, than the one for the payment of rent, and three days' notice, in writing, requiring the performance of such conditions or covenants, or the possession of the property, shall have been served upon him or her, and if there is a subtenant in actual occupation of the premises, also, upon the subtenant. Within three days after the service of the notice, the tenant, or any subtenant in actual occupation of the premises, or any mortgagee of the term, or other person interested in its continuance, may perform the conditions or covenants of the lease or pay the stipulated rent, as the case may be, and thereby save the lease from forfeiture; provided, if the conditions and covenants of the lease, violated by the lessee, cannot afterward be performed, then no notice, as last prescribed herein, need be given to said lessee or his or her subtenant, demanding the performance of the violated conditions or covenants of the lease.

1161.5 Civ. Proc.

When the notice required by Section 1161 Civ. Proc. states that the lessor or the landlord may elect to declare the forfeiture of the lease or rental agreement, that declaration shall be nullified and the lease or rental agreement shall remain in effect if the lessee or tenant performs within three days after service of the notice or if the breach is waived by the lessor or the landlord after service of the notice.



Please see the information at the following links:

http://www.dca.ca.gov/publications/landlordbook/terminations.shtml
http://www.dca.ca.gov/publications/landlordbook/evictions.shtml
http://www.dca.ca.gov/publications/landlordbook/resolve-problems.shtml.
http://www.ftb.ca.gov/individuals/hra/
http://www.hud.gov/local/index.cfm?state=ca&topic=renting
http://www.hud.gov/local/ca/renting/tenantrights.cfm
http://www.dca.ca.gov/publications/landlordbook/appendix3.shtml

05/04/2009 - Category: Lease Termination - State: CA #16557

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