Q: My grandmother passed away last year and I inherited a little house in Suisun City. It was the house my grandmother lived in until she had to go to a care facility. At that time we turned it into a rental. The problem is we sort of lost track of managing the house and the tenants haven’t paid rent for almost a year. I tried to talk to them this week about it but they now say the deal was that they would take care of the house and don’t have to pay rent. I want to get them out of the house so I can put some paying tenants in there but I don’t know how to go about doing it. I should tell you we don’t have any written lease agreement with the tenants but I can’t imagine they can stay there legally without paying rent.
A: Well, they can stay there legally without paying rent as long as you let them.
There are two different, although related, issues here.
The first is figuring out if you can prove what the agreement between you and the tenants was in the first place. That’s a decision you have to make before you can go to step two, the eviction.
There’s nothing wrong, albeit not particularly wise, about renting a house to someone with an oral agreement. If the deal is they’ll pay $1,500 per month and they can live there on a month-to-month basis, then you’ve formed a contract that is enforceable in court. You don’t even have to shake hands on it.
The problem occurs when you do go to court and try to prove what the deal was.
I’m not clear from your email if the tenants had been paying rent and then stopped at some point, or whether they never started paying.
With oral leases, the way the parties prove what the rent was supposed to be is through the history of the tenant paying a certain amount. We call it “course of conduct” and it is admissible to show the existence of, and the terms of, the contract.
Complicating the issue from your perspective is that mere fact that we’re in California, the king of the consumer protection states. Here, the tenant is the consumer and the laws are designed to protect the consumer from you the landlord.
That means it would be up to you to prove what the contract really was. Absent any proof from you, the tenants could win their argument.
If the tenants had been paying over a long course of time and then stopped, you’d have a much better case.
Now you have to move to the next step to actually get them out.
The beginning of most eviction processes is to give the required written notices to the tenant. That starts the countdown towards eviction.
If a tenant doesn’t pay their rent, the landlord gives them a three-day notice to pay rent or quit. In other words, they have three days to bring their rent current or leave. After three days they lose the chance to stay there and an eviction lawsuit, called an “unlawful detainer,” can be filed.
However, if you can’t prove they were supposed to pay rent in the first place you need to give them a notice to vacate. In other words, you’re terminating their lease.
The length of the notice is either 30 or 60 days.
If the tenants have lived there for less than one year you can give them a 30-day notice. But it sounds like they’ve been there a year or longer, which requires a 60-day notice.
If they are still there at the end of the notice period you’re free to file the unlawful detainer action.
Unlawful detainers are a type of expedited proceeding in which you can get a trial in about three weeks and a Sheriff out to the property to remove the tenants a couple of weeks after that, assuming you win in court.
So, the bottom line is, if you think you can prove the non-payment of rent in court, give them the three-day notice since you’ll save four to eight weeks in the process. Additionally, you may be able to get a money judgment against them for the unpaid rent.
But if you’re not sure, you are probably safer just giving the 60 day notice and waiting.
A last word of caution here, there are numerous books on how to do your own eviction. If I could recommend the do-it-yourself approach I would, but unlawful detainers are very technical types of lawsuits owing to the speed with which they can be brought. All courts hold the landlord strictly liable for doing everything correctly. The penalty for checking the wrong box can mean going back, giving notices again, waiting through the time frames again, and then filing a whole new lawsuit.
This is one place where you want to seriously consider hiring a lawyer who does 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].