Local Business

Stop! Dismiss the lawsuit

By From page HSR2 | June 07, 2014

Q: I have a small house I inherited from my brother. It’s been rented to a young couple for the past six months. They’ve always paid their rent late, but last month they didn’t pay at all. I got online and bought a book on property management. It told me how to file for an eviction. I served the tenants with the three-day notice they had in the book. The wife immediately paid me half of the rent and promised to pay the rest the following day. I didn’t hear from them again so I filed a lawsuit. The tenants answered the lawsuit and we are set to go to trial in two weeks. The tenants said in their answer that I had accepted partial rent and couldn’t evict them. They also said there were other tenants in the house who weren’t served with the three-day notice or the lawsuit and I can’t evict them either. I think I’m over my head. What should I do?

A: First, dismiss your lawsuit, because you’re going to lose big-time.

Now for a little background.

California and New York are the leading states in consumer protection laws. Nowhere is that more evident than in the laws regarding landlords and tenants.

Before the law will order someone physically removed from their home it will first make sure that the landlord had dotted every “i” and crossed every “T” in the eviction process. You screwed up in at least two places.

The three-day notice you served, I assume, was a three-day notice to pay rent or quit. It should have laid out exactly how much money was due, to whom it had to be paid, and that you were going to consider the lease forfeit if it wasn’t paid in full within three days. You should have refused to accept a partial rent payment.

As far as the law is concerned, when you accepted the partial rent payment you waived your right to proceed under the three-day notice. As a result, everything else you did, like file the lawsuit, was of no effect. You will have to dismiss the suit right away.

Then you can serve another 3-day notice. Make sure it properly reflects the current amount owed.

If there are other adults who are going to claim that they reside on the property, you will have to name them in your notice and your lawsuit. If you don’t, your judgment and ultimate eviction won’t be valid towards them.

In order to protect yourself, you should serve with your lawsuit a special document known as a Prejudgment Claim of Right to Possession. This document was devised by the courts to give notice to anyone claiming a right to live in the house, even if they aren’t on the lease.

If someone wants to claim a right to live there they must fill out the form and file it with the court. If no one files it, they will forever be prevented from claiming to the sheriff that the eviction doesn’t apply to them.

Eviction lawsuits are known as Unlawful Detainer Actions because you are, ultimately, claiming that the tenant is illegally detaining you from taking possession of the property.

Unfortunately, the statutory waters that a landlord must wade through in order to evict a residential tenant are treacherous indeed. Even experienced attorneys get it wrong from time to time.

I’m usually slow to advise readers in this column to pay the money for an attorney, but the technical requirements of unlawful detainer actions are so complicated, and constantly changing, that most are no longer considered routine.

Add to that the fact that tenants may be very sophisticated regarding the consumer protection laws that pertain to landlord/tenant issues. Since your tenant had demonstrated a willingness to answer the complaint and appear at trial, you need to hire an attorney to handle the process.

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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