How Do I Evict my Brother From my Home in California if He Has No Lease?
Full Question:
Answer:
Without a written lease, a tenant is generally considered a month-to-month, at-will tenant. A landlord can terminate a month-to-month tenancy simply by giving the tenant 30 or 60 days' advance written notice.
A landlord can end a periodic tenancy (for example, a month-to-month tenancy) by giving the tenant proper advance written notice. A landlord must give 60 days' advance written notice that the tenancy will end if the tenant and every other tenant or resident have lived in the rental unit for a year or more. However, the landlord can give 30 days' advance written notice in either of the following situations:
Any tenant or resident has lived in the rental unit less than one year; or
The landlord has contracted to sell the rental unit to another person who intends to occupy it for at least a year after the tenancy ends. In addition, all of the following must be true in order for the selling landlord to give a 30-day notice:
The landlord must have opened escrow with a licensed escrow agent or real estate broker, and
The landlord must have given you the 30-day notice no later than 120 days after opening the escrow, and
The landlord must not previously have given you a 30-day or 60-day notice, and
The rental unit must be one that can be sold separately from any other dwelling unit.
The landlord usually isn't required to state a reason for ending the tenancy in the 30-day or 60-day notice.
In California, the landlord can terminate the tenancy by giving the tenant only three days' advance written notice if the tenant has done any of the following:
-Failed to pay the rent.
-Violated any provision of the lease or rental agreement.
-Materially damaged the rental property ("committed waste").
-Substantially interfered with other tenants ("committed a nuisance").
-Used the rental property for an unlawful purpose.
If the landlord gives the tenant a three-day notice because the tenant hasn't paid the rent, the notice must accurately state the amount of rent that is due. In addition, the notice must state:
-The name, address and telephone number of the person to whom the rent must be paid.
-If payment may be made in person, the usual days and hours that the person is available to receive the rent payment. If the
address does not accept personal deliveries, then you can mail the rent to the owner at the name and address stated in the
three-day notice. If you can show proof that you mailed the rent to the stated name and address (for example, a receipt for
certified mail), the law assumes that the rent payment is received by the owner on the date of postmark.
Instead, the notice may state the name, street address and account number of the financial institution where the rent payment may be made (if the institution is within five miles of the unit). If an electronic fund transfer procedure was previously established for paying rent, payment may be made using that procedure. The landlord normally cannot require that the tenant pay the past-due rent in cash.
If the three-day notice is based on one of the other conditions listed above, the notice must either describe the tenant's violation of the lease or rental agreement, or describe the tenant's other improper conduct. The three-day notice must be properly served on the tenant
Depending on the type of violation, the notice may specify (1) that the tenant correct the violation or leave the rental unit, or (2) that the tenant move out. If the violation is something able to be corrected, such as late lpayment of rent, the notice must give the tenant the option to correct the violation. However, the other three conditions listed above cannot be corrected, and the three-day notice can simply order the tenant to leave at the end of the three days.
The following are CA statutes:
1946. A hiring of real property, for a term not specified by the
parties, is deemed to be renewed as stated in Section 1945, at the
end of the term implied by law unless one of the parties gives
written notice to the other of his intention to terminate the same,
at least as long before the expiration thereof as the term of the
hiring itself, not exceeding 30 days; provided, however, that as to
tenancies from month to month either of the parties may terminate the
same by giving at least 30 days' written notice thereof at any time
and the rent shall be due and payable to and including the date of
termination. It shall be competent for the parties to provide by an
agreement at the time such tenancy is created that a notice of the
intention to terminate the same may be given at any time not less
than seven days before the expiration of the term thereof. The
notice herein required shall be given in the manner prescribed in
Section 1162 of the Code of Civil Procedure or by sending a copy by
certified or registered mail addressed to the other party. In
addition, the lessee may give such notice by sending a copy by
certified or registered mail addressed to the agent of the lessor to
whom the lessee has paid the rent for the month prior to the date of
such notice or by delivering a copy to the agent personally.
1946.1. (a) Notwithstanding Section 1946, a hiring of residential
real property for a term not specified by the parties, is deemed to
be renewed as stated in Section 1945, at the end of the term implied
by law unless one of the parties gives written notice to the other of
his or her intention to terminate the tenancy, as provided in this
section.
(b) An owner of a residential dwelling giving notice pursuant to
this section shall give notice at least 60 days prior to the proposed
date of termination. A tenant giving notice pursuant to this section
shall give notice for a period at least as long as the term of the
periodic tenancy prior to the proposed date of termination.
(c) Notwithstanding subdivision (b), an owner of a residential
dwelling giving notice pursuant to this section shall give notice at
least 30 days prior to the proposed date of termination if any tenant
or resident has resided in the dwelling for less than one year.
(d) Notwithstanding subdivision (b), an owner of a residential
dwelling giving notice pursuant to this section shall give notice at
least 30 days prior to the proposed date of termination if all of the
following apply:
(1) The dwelling or unit is alienable separate from the title to
any other dwelling unit.
(2) The owner has contracted to sell the dwelling or unit to a
bona fide purchaser for value, and has established an escrow with a
licensed escrow agent, as defined in Sections 17004 and 17200 of the
Financial Code, or a licensed real estate broker, as defined in
Section 10131 of the Business and Professions Code.
(3) The purchaser is a natural person or persons.
(4) The notice is given no more than 120 days after the escrow has
been established.
(5) Notice was not previously given to the tenant pursuant to this
section.
(6) The purchaser in good faith intends to reside in the property
for at least one full year after the termination of the tenancy.
(e) After an owner has given notice of his or her intention to
terminate the tenancy pursuant to this section, a tenant may also
give notice of his or her intention to terminate the tenancy pursuant
to this section, provided that the tenant's notice is for a period
at least as long as the term of the periodic tenancy and the proposed
date of termination occurs before the owner's proposed date of
termination.
(f) The notices required by this section shall be given in the
manner prescribed in Section 1162 of the Code of Civil Procedure or
by sending a copy by certified or registered mail.
(g) This section may not be construed to affect the authority of a
public entity that otherwise exists to regulate or monitor the basis
for eviction.
(h) This section shall remain in effect only until January 1,
2010, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2010, deletes or extends
that date.
1161. 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 the
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 applicable; 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 occupancy by the agreement between the parties has expired; but
nothing in this subdivision shall be construed as preventing the
removal of the 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 applicable, 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, the name,
telephone number, and address of the person to whom the rent payment
shall be made, and, if payment may be made personally, the usual days
and hours that person will be available to receive the payment
(provided that, if the address does not allow for personal delivery,
then it shall be conclusively presumed that upon the mailing of any
rent or notice to the owner by the tenant to the name and address
provided, the notice or rent is deemed received by the owner on the
date posted, if the tenant can show proof of mailing to the name and
address provided by the owner), or the number of an account in a
financial institution into which the rental payment may be made, and
the name and street address of the institution (provided that the
institution is located within five miles of the rental property), or
if an electronic funds transfer procedure has been previously
established, that payment may be made pursuant to that procedure, 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 the subtenant.
The 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 applicable, he or she shall be
deemed to be holding by permission of the landlord or successor in
estate of his or her landlord, if applicable, 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 the
lessee or his or her subtenant, demanding the performance of the
violated conditions or covenants of the lease.
A tenant may take proceedings, similar to those prescribed in this
chapter, to obtain possession of the premises let to a subtenant or
held by a servant, employee, agent, or licensee, in case of his or
her unlawful detention of the premises underlet to him or her or held
by him or her.
4. Any tenant, subtenant, or executor or administrator of his or
her estate heretofore qualified and now acting, or hereafter to be
qualified and act, assigning or subletting or committing waste upon
the demised premises, contrary to the conditions or covenants of his
or her lease, or maintaining, committing, or permitting the
maintenance or commission of a nuisance upon the demised premises or
using the premises for an unlawful purpose, thereby terminates the
lease, and the landlord, or his or her successor in estate, shall
upon service of three days' notice to quit upon the person or persons
in possession, be entitled to restitution of possession of the
demised premises under this chapter. For purposes of this
subdivision, a person who commits an offense included in paragraph
(1) of subdivision (c) of Section 11571.1 of the Health and Safety
Code, or subdivision (c) of Section 3485 of the Civil Code, or uses
the premises to further the purpose of that offense shall be deemed
to have committed a nuisance upon the premises. For purposes of this
subdivision, if a person commits an act of domestic violence as
defined in Section 6211 of the Family Code, sexual assault as defined
in Section 261, 261.5, 262, 286, 288a, or 289 of the Penal Code, or
stalking as defined in Section 1708.7, against another tenant or
subtenant on the premises there is a rebuttable presumption affecting
the burden of proof that the person has committed a nuisance upon
the premises, provided, however, that this shall not apply if the
victim of the act of domestic violence, sexual assault, or stalking,
or a household member of the victim, other than the perpetrator, has
not vacated the premises. This subdivision shall not be construed to
supersede the provisions of the Violence Against Women and Department
of Justice Reauthorization Act of 2005 (Public Law 109-162) that
permit the removal from a lease of a tenant who engages in criminal
acts of physical violence against cotenants.
5. When he or she gives written notice as provided in Section 1946
of the Civil Code of his or her intention to terminate the hiring of
the real property, or makes a written offer to surrender which is
accepted in writing by the landlord, but fails to deliver possession
at the time specified in that written notice, without the permission
of his or her landlord, or the successor in estate of the landlord,
if applicable.
As used in this section, tenant includes any person who hires real
property except those persons whose occupancy is described in
subdivision (b) of Section 1940 of the Civil Code.
This section shall remain in effect only until January 1, 2012,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2012, deletes or extends that date.
