Renter doesn’t pay but judge lets her stay in the house

By From page C3 | October 06, 2012

Q:  We own three rental homes we have had for more than 15 years now. Since both my husband and I are retired, we have the time to do the management ourselves and, with only a few bumps in the road, haven’t had a lot of problems. That is until this year. Earlier this year we put a new tenant into one of the houses. We checked her credit score and did all of that, and she seemed to check out fine. The tenant paid first and last rent when she moved in, but hasn’t paid a penny since. That was almost five months ago.

We finally got fed up and used a document preparation service to prepare a three-day notice for the tenant. When she didn’t pay, we filed a lawsuit. The tenant then filed an answer to the lawsuit. It took us weeks to figure out what to do next since the people who did our paperwork aren’t lawyers and wouldn’t tell us anything more regarding what to do. But eventually a woman at the courthouse showed us how to request a trial.

We went to the court trial and the tenants showed up with a lawyer. He argued that our notice wasn’t right and that repairs were supposed to be made to the house and a bunch of other things. The bottom line was the judge denied our lawsuit, let the woman stay, and told us we had to pay for her lawyer. I have since gotten a self-help book on evictions and read through the process. It looks to us like we did everything right. Can you help shed some light?

A:  You know that old saying about bringing a knife to a gun fight?  It seldom turns out well for the blade-holder.

The truth is that evictions in California aren’t particularly complicated. In fact, the paperwork is far easier, faster and less technical than an ordinary superior court suit.

But the devil is in the proverbial details.

Eviction lawsuits, known as unlawful detainer lawsuits, constitute a unique form of court action.

Whereas a “normal” lawsuit may take a year or more to resolve through trial, the California legislature recognized long ago that it wouldn’t be fair for a landlord to have to house a tenant for 12 months just to throw them out for not paying their rent.

So they devised a system which is, generally, both fast and arguably fair.

A landlord can file his lawsuit and actually get to trial in as little as two to three weeks. If he wins, a deputy sheriff can be at the property to remove the tenant in less than a week after trial.

But, and here’s the big “but,” all of the responsibility for doing everything right rests on the shoulders of the landlord.

This makes sense since the landlord is, in effect, trying to take away the tenant’s home and the process leaves the tenant with very little time to do something about it.

That means your three-day notice had to be perfect. It had to state exactly how much rent is owed, who to pay it to, the address where it could be paid and a lot of other things. Any problem with any part of the notice invalidates the entire lawsuit.

Additionally, the notice had to be served properly and properly attached to your lawsuit’s paperwork.

Then, of course, the lawsuit’s written complaint had to be perfect.

I have no doubt a legal document preparer could fill out the papers correctly. But simply based upon your email I have no idea if they were prepared perfectly.

Let’s assume, for the sake of argument, the papers were filled out correctly and served properly.

When you go to court, the entire burden is upon you to prove you did everything correctly.

The tenant showed up with a lawyer. It’s likely the attorney raised a host of questions about your three-day notice with the expectation that you didn’t know enough about the law and the process to defend the quality of the notice.

In other words, once the tenant raised the question, it was up to you to prove you did it right. Unlike small claims court, it isn’t the judge’s job to figure it all out without your help. In fact, the judge’s job is to side with the tenant until the landlord can prove he has a lawful right to evict.

Regarding the repairs, that’s a far more complicated area of landlord-tenant law. I can guess the arguments were about something called “habitability” issues.

In other words, did the house comply with certain health and safety codes?

But that’s a complicated legal and factual question.

I am a big fan of readers resolving their disputes in small-claims court because it’s quick, cheap and logistically simple.

But you can’t go to small-claims court to do an eviction.

Unlawful detainer lawsuits are also quick, and even relatively cheap, but the technical complexities can be used by a tenant’s attorney, or just a knowledgeable tenant, against a non-attorney landlord.

On this one, I have to recommend that you use a law firm to evict your tenant. Feel free to call a property management company or two and ask them who they use for their evictions.

Tim Jones is a real estate attorney in Fairfield. If you have any real estate questions you would like to have answered in this column you can contact him at [email protected]

Tim Jones


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