Three Day Notice to Pay Rent or Quit
This notice is used when the
tenants are in violation of the rental agreement or lease by failing
to pay the full rent when due. All adults living on the premises
must be named on the notice. The address must be complete and
accurate, and the rent demanded must be precise. In addition,
instructions must be included as to how and where the tenant may
make their payment. Any overstatement in the amount due will make
the notice invalid. Do not include late charges or NSF charges. Only
rent due is to be included on the notice.
Sixty Day Notice to Vacate
A sixty day notice is used to
terminate a month to month tenancy. No reason must be given to the
tenant when serving this notice. It may be served at any time during
the month and expires sixty days after service. Do not accept rent
from the tenants for any time period beyond the expiration date
unless you intend to rescind the notice. In some cases, a thirty day
notice may suffice. Your attorney will be able to make that
determination once he or she has reviewed the facts of your case.
Three Day Notice to Cure Breach or Quit
This notice is used when you have a
material violation of the rental agreement or lease other than
nonpayment of rent. The most common uses are when tenants violate a
no pet clause or when tenants sublet or assign to another person
without your consent. Use this notice very carefully. You may be
required to prove violations in court. If you lack adequate proof of
the violation and it's a month-to-month rental, it may be advisable
to use the thirty day notice to vacate instead of the three day
notice to cure breach or quit.
Service of Notice
Once you have determined which
notice is appropriate, you must serve the tenants with the completed
notice. Service of the notice may be accomplished by one of three
- Personally. Each tenant is handed one copy of the
notice. Keep the original and serve copies of the notice.
- Substitute Service. Service by substitution is complete
when a person of suitable age is given a copy of the notice
at the residence and an additional copy is sent to the
tenant's home address by means of regular first class mail.
- Post and Mail. This method is the least desirable but
the most common type of service. A copy of the notice is
posted on the door and a copy is mailed the same day by
means of regular first class mail.
Computing the time period set
forth in the notice is critical. For example, if a three day notice
is served on Monday, the three days counted would be Tuesday,
Wednesday and Thursday. The tenants have through Thursday to pay the
full amount or vacate the premises. Note that the day the notice is
served is excluded when counting the days. When the notice period
ends on a weekend or holiday, the tenants have through the next
business day to pay.
Notice of Belief of Abandonment
Sometimes it is difficult to
determine whether the tenants have abandoned the premises, which
makes it difficult for the landlord to know whether or not he can
lawfully take possession of the premises. In these situations, the
notice of belief of abandonment should be utilized. Before it can be
used, two requirements must be met: 1) the rent must be at least
fourteen days overdue, and 2) you must believe that the property has
been abandoned. If these two requirements are met, in order to
re-take possession you must complete and serve a notice of belief of
abandonment. If a response is not received by the 18th day after
mailing the notice, you may retake possession.
If the tenants want to remain in
the property, they must reply by the eighteenth day, by indicating
that they have not abandoned the property, and must provide an
address where they can be served with a summons and complaint for
unlawful detainer. The abandonment notice can sometimes be used as
an alternative, or in addition to, the eviction procedure. It does
not affect the three day notice to pay rent or quit. In certain
situations, we will prepare and serve both an abandonment notice and
an unlawful detainer, having the two run simultaneously. Possession
is restored on the first one to terminate.
Filing the Summons, Complaint & Prejudgment Claim
We now file suit. After the notice
expires and the tenants fail to comply, an unlawful detainer action
is brought against the tenants. The summons is a document informing
the tenants/defendants that they have been sued. The complaint
contains the allegations that the law requires to entitle the
landlord to regain legal possession of the premises. The prejudgment
claim of right to possession protects you against tenants who are
not named in the lease. After the documents are prepared in our
office, we messenger them to the court the same or next day. After
the documents are filed with the court, the tenants/defendants must
then be served with the lawsuit.
Serving the Summons, Complaint & Prejudgment Claim
California law requires that a
sheriff, process server or other disinterested third party serve the
summons, complaint and prejudgment claim of right to possession on
the tenants. Tenants, aware that the rent is unpaid, will often try
to evade the process server to delay the eviction. The process
servers we use will do everything the law allows to serve the
tenants on the first day possible.
The vast majority of tenants are
served within a few days. However, sometimes a tenant can not be
located and served. In those rare cases, we are required by law to
petition the court for an "order to post" the summons and complaint.
Before the court allows us to "post and mail" the summons and
complaint, it must be satisfied that our process server has been
diligent in attempting to serve the tenants both at home and work.
When the judge is satisfied, he or she will permit us to "post and
mail" the summons and complaint. Your tenants will have a total of
fifteen days (instead of the regular five) to respond to the
unlawful detainer suit. Similarly, the tenant who has been served by
substitute service has ten additional days to respond to the
summons. Thus in both order to post and substitute service cases,
the time period is extended by ten days. Obviously, this procedure
leads to considerable delay. Unfortunately, in some instances, it is
the only method available to serve some tenants.
Obtaining the Judgment - Uncontested Cases
In the great majority of cases, the
tenants do not respond to the complaint. After the time period for
the response has expired, we apply to the court for a default
judgment. In a default case, no court appearance by you or your
property manager is required. Our office will handle the entire
matter for you.
Obtaining the Judgment - Contested Cases
Sometimes tenants will file a
response to the unlawful detainer within the time period allowed by
law. This gives the tenants the right to have their day in court.
Filing such a response does not mean the tenant wins, however, it
does mean a delay in regaining possession.
Once our office becomes aware of
the answer, we immediately set the matter for trial. Unlawful
detainers are entitled to preference on the court calendar and are
usually set for trial within fourteen to twenty days after the
answer is filed. Including the additional days it takes to get to
trial, the total time it takes to complete a contested case is
usually 35 to 45 days. However, court delays can occur, and may
extend the total time it takes to conclude the matter.
When the trial date is set, we will
immediately notify you. We will also discuss the case with you
shortly before the trial. Either you or your property manager will
need to be present at the trial to testify. At trial, as soon as the
judge rules in your favor, we will immediately submit a "judgment
after trial by court" which the judge signs and the clerk enters
into the record. Once the judgment is entered, either by default or
after trial, the final step, the lock-out procedure commences.
The eviction process concludes with
the writ of execution for possession of the premises. The writ is an
order from the court to the county sheriff, giving him the power and
duty to carry out the judgment. A sheriff drives to the premises and
posts a five day notice to vacate. This is the final five days that
the tenants may continue to possess the property. On the sixth day,
the sheriff will meet you or your agent at the premises at a
designated time. If the tenants are still inside when the sheriff
arrives, the tenants will be physically removed from the premises.
You will then receive a receipt for possession of the premises from
the Sheriff as proof of your right to possession.
After the Eviction
If the tenants move and leave some
personal property, you must mail a notice of abandonment of personal
property to the tenants' last known address and allow the tenants
eighteen days to claim the property. The property must be kept in a
reasonably safe place, but does not have to be stored in the leased
premises. If the property left behind is worth less than $300 you
may dispose of it after the 18 days. However, if the property
exceeds $300 in fair market value, you must sell the property
through a public sale, but only after publishing the date and time
of sale in a newspaper of general circulation once a week for two
consecutive weeks. If the tenants return to claim the property, you
must return it to them, but you may charge reasonable storage fees.
You may not hold the property as ransom for rent even if you have a
judgment. It is always prudent to take photographs of the personal
property and make an inventory.
If you have received a security
deposit from the tenants, the law requires that you mail a statement
of the disposition of the deposit to the last known address within
twenty-one days after you receive possession of the premises. Even
though the tenants owe you money, you still must account for the
deposit. Deduct for any damages above ordinary wear and tear and
cleaning expenses. Once the deductions have been made, the remaining
balance is applied toward any rent owed. You must provide the
statement even if 100% of the deposit is applied to damages and
Collecting the Debt
After the tenants have been evicted
and you have authorized us to obtain a money judgment for the unpaid
rent, reimbursement for damages, attorney fees, and court costs, we
can pursue the money rightfully owing. We maintain our own in-house
collection department and aggressively pursue the judgment debtor
until you are paid in full. There is no charge for collection if
there is no recovery.
Obtaining the Money Judgment
When the unlawful detainer process
is complete and you have regained possession of your property, a
money judgment can be obtained. In a "skip" situation, a judgment
can be obtained through small claims or municipal court, depending
on the case.
Obtaining a money judgment is a
powerful tool for recovering any unpaid rent and costs. A judgment
is enforceable for 10 years and can be renewed for 10 additional
As a law firm, we have resources
that are not available to most collection agencies. For example, we
can exercise the legal power to subpoena information from otherwise
private sources. This is highly effective in collecting money
Locating the Debtor's Assets & Income
After we locate the debtors, we
assess their ability to repay the debt. Since many debtors refuse to
cooperate in any way, often it becomes necessary to determine their
assets and income by other means. In addition to the skip tracing
resources at our disposal, we can use additional methods to uncover
their assets and income. One of these methods is a legal process
known as the Order for Debtor Examination. We obtain a court order
that requires the debtor to appear before a judge with all of their
financial information for examination. We also subpoena pertinent
information from parties with whom the debtor does business, if
necessary. It is common for us to receive a cash payment at the
examination and to negotiate a payment plan. If the debtors fail to
appear, the judge may issue a warrant for their arrest.
Attaching the Debtor's Assets
For debtors who refuse to pay their
debt, we can effect legal seizure of their bank accounts, real and
personal property, wages and / or business income. Since there are
many exempt sources of income and exempt assets, it is crucial to
know exactly what they have and what legal process to use to attach
it. When this is certain, we obtain a court order to effect
collection of the debt.
If the debtors are employed, up to
25% of their wages can be garnished. If they have a business, a
sheriff can enforce a "till tap" and remove all cash receipts from
their place of business. Their non-exempt bank accounts can be
levied for the full amount of the judgment. In some cases, personal
property such as automobiles, jewelry and luxury items can be
identified and attached by the sheriff's office for judicial sale.
Another effective tool that our
firm uses is the filing of an Abstract of Judgment in the county or
counties where the debtor has, is likely to have, or is likely to
acquire, real property. The abstract will create a lien on the
property which must be satisfied before a sale or refinancing of the
property can be accomplished.
Even if the debtor has assets or
income in another state, we can collect in most states through what
is known as a "sister state judgment". Although a somewhat lengthy
process, our firm can domesticate judgments in the state and county
of the debtor's residence or business and enforce the judgment as
though it were in California.
Satisfying the Judgment
We maintain all collection files
through our debt collection system. This system allows us to
successfully oversee, track, review, update, and handle all files in
our collection department. Our system accurately maintains the
amount owed, calculates interest on the unpaid principal balance,
adds any additional costs incurred and credits any and all payments
received. Upon receipt of the final moneys owed, our office will
promptly file a satisfaction of judgment with the appropriate court.
We handle all your collection needs, from start, to completion.
Eleven Ways to Collect a Personal