The eviction process usually involves three phases: 1) a notice is given to the tenant, 2) unlawful detainer litigation leading to a settlement or a judgment, and, 3) enforcement of the judgment through a sheriff’s eviction restoring possession of the premises to the landlord, and through collection of a money judgment. The process may terminate at any stage, depending upon the circumstances. For example, the tenant may comply with the notice by vacating the premises, it which case, it would be unnecessary to commence the unlawful detainer lawsuit. Or, the parties may reach a settlement after the lawsuit has commenced, usually including an agreement by the tenant to vacate the premises and often including some arrangement as to any unpaid rent, court costs, and attorney fees. The process may be resolved within six weeks or up to approximately four months, depending upon the type of the notice given and whether the tenant contests the lawsuit, and, if so, to what extent.
The type of notice, the manner of service of the notice, the judicial proceedings, and the enforcement of the settlement and/or judgment are governed by California law set forth in the Code of Civil Procedure. Additionally, in most San Francisco cases, the tenancy and the grounds for eviction are subject to the eviction protection provisions of the San Francisco Administrative Code, also known as the Rent Ordinance. All of these provisions, some of which are quite complicated and difficult to understand, must be strictly complied with, from the very outset of the case. Thus, it is very important that the notice given is accurate and that it complies with all applicable laws. If not, the case may be terminated in favor of the tenant, and it may have to be started all over again, with much lost time and expense.
There are several types of notice: 1) a thirty or sixty day notice, which is given to terminate a month-to-month tenancy, and with or without cause, depending upon the application of the Rent Ordinance. In much the same manner, a tenant may give notice to the landlord to terminate a month-to-month tenancy after thirty days. In general, a sixty day notice must be given if the tenant has resided in the unit for over 12 months. 2) A three-day notice, which is given to address a tenant’s rent default, breach of contract, or nuisance activity. In general, except in the case of a nuisance notice, the tenant is given an opportunity to either cure the breach, for example, to pay the rent, or else to voluntarily vacate the premises, within the three-day period. In the example of a three-day notice to pay rent or quit, the tenant may continue the tenancy and remain in possession of the premises if the tenant complies by paying all of the overdue rent within three days after service of the notice. 3) A one-hundred and twenty day notice, given to terminate a tenancy under the Ellis Act in order to remove all residential units on the property from the rental market.
If the tenant does not comply with the notice, only then is the landlord entitled to commence an unlawful detainer lawsuit against the tenant. It is said that the tenant has “unlawfully detained” the premises by failing to comply with the notice. If the landlord proves unlawful detainer by presenting sufficient evidence during a trial against the tenant, the landlord will be entitled to an unlawful detainer judgment for possession of the premises, unlawful detainer damages for the amount of unpaid rent and/or daily rental value. The trial may before a judge, or, if either party requests, before a judge and jury. The sheriff will enforce the judgment by evicting the tenant and restoring possession of the premises to the landlord. Also, the money judgment may be collected in various ways, such as by garnishing wages or seizing bank accounts or other property. If the tenant does not contest the lawsuit, then the landlord may obtain a judgment without trial. This is called a default judgment.
If the tenancy is subject to the San Francisco Rent Ordinance, then the landlord may not evict a tenant for any reason or no reason, but only as permitted under the Rent Ordinance. The Rent Ordinance defines fourteen different bases for eviction, including non-payment of rent, nuisance, and owner-occupancy. The landlord’s actions must be based in good faith upon one or more of these reasons. The landlord may not lawfully concoct a pretextual basis to evict, with an ulterior motive to dispossess the tenant in order, for example, to rent the unit to new tenants at market rent. If it shown that the landlord has violated the Rent Ordinance, even innocently or merely accidentally, then the landlord may be liable to the tenant in a wrongful eviction case for treble damages, attorney fees, costs, and punitive damages. Any such violation also constitutes a criminal misdemeanor for which the landlord may be prosecuted.
Even though the eviction process might seem to the inexperienced landlord to be very straightforward, it is very important that the landlord obtain competent legal counsel to assist from the very beginning of the eviction process. An experienced eviction lawyer will assure that the landlord complies, both substantively and procedurally, with all applicable laws, thereby avoiding delays, unnecessary expense, and possible liability to the tenant for wrongful eviction and/or criminal sanctions. Also, the landlord should have adequate insurance coverage to protect against a lawsuit in case of innocent “wrongful eviction.” (Please see the topic “Insurance Issues”)