- Home
- Self Help
- Landlord / Tenant
- Landlord / Tenant Action
Landlord / Tenant Action
What is a Landlord / Tenant Action?
The legal process for evicting a tenant is referred to as a “Landlord/Tenant” action. In order to legally evict a tenant or tenants it is important for the landlord to follow some important and necessary steps. Although the Summons and Complaint is the first paperwork that you will be filing at the courthouse, you must first have served proper notice (for example, a three-day notice) upon the tenant.
In California, a landlord may be able to evict a tenant if the tenant:
- Fails to pay the rent on time;
- Breaks the lease or rental agreement and will not fix the problem (like keeping when pets are not allowed);
- Damages the property bringing down the value (commits "waste");
- Becomes a serious nuisance by disturbing other tenants and neighbors even after being asked to stop; or
- Uses the property to do something illegal.
What must a Landlord do before filing a Landlord/Tenant action?
Landlords must serve the tenants with a proper notice before filing the Summons and Complaint. The preliminary notice stage is critical – if you served the wrong notice, the judge can throw out your eviction lawsuit and make you start all over. You will have to pay the fees again, too. Below are the different types of notices that can be used. If you are unsure about which notice to use, or if you would like to obtain a notice, you canvisitour Resource Center in person.
- 3 Day Notice to Pay Rent or Quit:
- Legal notice to pay rent within 3 days or you will start eviction process.
- Notice needs to include:tenant’s name, property address, amount of rent, how tenant can pay the money to you, the days and times payment may be made, and who the tenant can pay
- 3 Day Notice to Comply or Quit:
- Legal notice allowing the tenant a chance to correct a breach of their rental agreement.
- Notice must specify the violation and what the tenant must do to correct it. It must be written in the alternative (i.e. comply or quit).
- Notice needs to include tenant’s name and property address.
- 3 Day Notice to Quit:
- Legal notice for tenant to move out when the tenant commits a serious breach of the rental agreement; nuisance; uses the premises for illegal activity (e.g. selling drugs, prostitution); threatens the health and safety of other tenants or the general public; or causes significant damage to the property.
- May be used to evict former owner of the property after sale.
- Notice must specify the cause for the notice.
- Notice needs to include tenant’s name, and property address
- 30 Day Notice to Quit:
- Used to terminate a month-to-month or periodic tenancy when the tenant lived in the property less than one year. No reason needed.
- Notice needs to include tenant’s name and property address.
- 60 Day Notice to Quit:
- Used to terminate a month-to-month or periodic tenancy when the tenant lived in the property one year or more.
- Notice needs to include tenant’s name and property address.
- 90 Day Notice to Quit:
- Required to evict a tenant after foreclosure of the property. This does not apply if the tenant is a party to the note that was foreclosed on or is an immediate family member of the foreclosed owner (use 3 Day Notice to Quit in that case)
- As of 1/1/2013: new owner of foreclosed property may need to honor an existing lease. Exceptions: new primary residence; tenant related to note; under-market rent
How to Serve Notice – by YOU or any adult
- Deliver a copy personally to each Tenant Or
- Deliver a copy to another adult on the property & follow up with a copy in the mail to each tenant Or
- Post the notice on the door & follow up with a copy in the mail to each tenant.
Your notice paper should have a “Proof of Service” area on it. The person who serves is the one who signs it. Be sure tokeep the original noticeand only serve copies.
Note:In some cases, a landlord can give a tenant more than 1 notice at the same time. For example, if the tenant is always late with the rent, a landlord can serve a “3-Day Notice to Pay Rent or Quit” and a “30-Day Notice to Quit” at the same time. If the tenant does not pay the rent within 3 days of receiving the 3-day period, he or she must still move out in 30 days. If the tenant does not move out after the 30 days, then the landlord has to file an unlawful detainer case.
When Notice is NOT required
A notice is almost always needed before filing an unlawful detainer case. But there are a few exceptions:
- Fixed term leases: If the tenant has a lease for a fixed period of time, and the lease is up and the landlord does not extend it, the landlord can file an unlawful detainer case without giving notice first. But the landlord cannon take any rent after the lease runs out or he or she will be creating a month-to-month tenancy, which requires notice to terminate
- The landlord accepts the tenant’s notice to end the lease. If the tenant gives the landlord notice that he or she will be moving out, but her or she does not, then the landlord can file an unlawful detainer case right away. The tenant works for the landlord and lives on the property as part of the job: The landlord can file an unlawful detainer case without notice as soon as the tenant does not work for the landlord anymore.
Starting a Landlord/Tenant Action (Overview)
If the tenant does not comply with the notice by paying rent and/or moving out, you have the option of going to Court and starting a Landlord/Tenant action (eviction).
Note: if you and the Tenant reach an agreement at any point during this process, the agreement can be written up and the case dismissed.
1. Fill out the forms
- Summons
- Complaint
- Civil Case Cover Sheet
These forms are available at the top of the page by clicking on: “Forms to Start an Eviction on a Tenant”
While completing the complaint, keep in mind:
- The plaintiff is usually the owner or landlord (in some limited situations the management company may be the plaintiff). But sometimes the plaintiff may be a person who is subletting to another tenant. For example, a tenant renting a house from the landlord may rent a room to another person, and that person would be a subtenant.
- The tenant who lives at the rental unit is the defendant. There can be more than 1 defendant.
- You must try to list the names of all adults living at the rental unit. This will make it easier to enforce the judgment if you win.
2. File the Complaint
- Make 2 copies of the Summons and Complaint and take them with the originals to the courthouse in the county where the property is located.
- Turn in your forms- original and copies- to the clerk. You will have to pay for the filing fee. (See Fee Schedule here for current Fees).
- If you cannot afford the filing fee, you can ask for a fee waiver. If the court approves your fee waiver request, you will not have to pay the fees, but if you win your lawsuit and collect money, the court may ask you to pay back the waived fees.
- The Clerk will stamp your forms “Filed” and give back 2 file-stamped copies of all the forms. One copy of each is for you. The other is for serving the tenant. If there is more than one tenant, make extra copies for the other tenants (you can make copies of the file-stamped copy for this purpose). The court keeps the original.
3. Serve the Summons and Complaint
- Every defendant/tenant named in the lawsuit must be served with the Summons and Complaint. Make sure a third party NOT involved in the case serves the Summons and Complaint on the defendant. You cannot serve the Summons and Complaint yourself, even if you served the notice. The tenant can be served in 1 of these 3 ways:
| Personal Service | The server gives the tenant the Summons and Complaint in person. If the tenant will not take the papers, the server can tell the tenant that he or she is being served and leave the papers as close to the tenant as possible. |
|---|---|
| Substituted Service | If the server attempts to personally serve the defendant with due diligence but cannot find them, the server may use substituted service. With substituted service, the server can give the court papers to a competent member of the household where the tenant lives, works or receives mail. The server must also mail a copy of the Summons and Complaint to the tenant at the address where the papers were left. Service is considered complete on the 10th day after mailing of the papers to the tenant. The landlord cannot use this type of service until the server tries at least 2 or 3 times, on different days and at different times of the day, to serve the tenant in person. This is called "due diligence." The server will have to fill out a form that says what days and times he or she tried to serve the tenant in person and that he or she exercised "due diligence." |
| Posting and Mailing | The landlord can only use this type of service if the court gives him or her permission. To ask the court, the server must first try to serve the tenant in person and by substituted service, and write a declaration for the court explaining that he or she was not successful. If the judge lets the landlord serve by posting and mailing, the server has to post a copy of the Summons and Complaint on the property where the tenant will see it and send another copy by certified mail to the tenant at the tenant's last known address. Service is considered complete on the 10th day after the certified mailing of the papers to the tenant. |
4. Fill out and File the Proof of Service
- The server must first complete and sign a Proof of Service of Summons (Form POS-010) and give it to you (the landlord).
- You must then take the completed, signed Proof of Service to the clerk for filing with a copy for yourself. You must make sure the Proof of Service is filled out correctly. A mistake on this form can delay the case.
