Ziegel Group Realty
Sherman Oaks REALTORS® – Property Management – Leasing Services – Real Estate Attorney
9Jun

Protecting your Property against crime and vandalism

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How to stop and prevent vandalism and crime?

Protecting your property against tvandalism
Vandalism is a crime that is committed without a specific reason. It is often committed by a small group of people and is usually gang related. It’s a problem that can reoccur, may be costly to fix and might require you to file an insurance claim and as a result pay higher annual premiums.
Here are some way to protect your property against vandalism:
• Install Lights: Keep your property lit at night with some lights that will turn on automatically at dusk and your off at dawn. Also install some lights with motion detection. This type of lights will turn on when movement is detected and stay on for a few minutes.
• Property access: keep all gates and entrances to your property locked at night. Any persons without a key have no business in your property at night.
• Install surveillance cameras: No criminals wants to be caught by camera. Put your cameras at a visible location and inform the presence of your cameras with plenty of signs. In many cases “dummy” or display non operating cameras with the addition of signage are enough to keep the bad guys out.
• Trim trees: Limbs can provide means of getting on roofs or second stories, or of getting over a wall or fence. Try to eliminate easy access to people you want to keep out.
• Neighborhood watch: Inform your tenants neighbors and other landlords about any crime prevention group or organization in your neighborhood.
• Extra security: Inform your local police department of any suspicious activity in your Neighborhood. You can also hire a private patrol service for additional protection.

We, at the Ziegel Group Real Estate and Property Management always inspect all the properties that we manage and recommend to our landlords and tenants the best ways to protect your homes.
Remember: the better environment you provide for your tenant, the most likely they will want to stay rather than look for a better place.

More Information can be Found here: National Crime Prevention Council

 

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23May

Do You Need a Property Management Company?

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Property Management Company

Why should you hire a Property Management Company?

Congratulations! You are an owner of a rental property. Deciding to work with or hire a property management company to represent your property is a big decision. While some owners self-manage their homes, using a management company is an alternative way to secure rental income for less stress and less dedicated time.
We at the Ziegel Group keep your property occupied by a reliable tenant and handle the dirty work, like late night phone calls, maintenance management, hunting down rent payments, or dealing with an eviction process.
Every task that we perform for your investment is done to promote the success of the property. If you are new to the industry, the Ziegel Group Property Management will also have all the appropriate leases, applications, notices of entry and other relevant documents, as well as screening procedures and knowledge of the landlord tenant laws in your state.
Some owners will base a management decision purely on the cost of services, and while cost should be considered, it is important to understand that our knowledge saves you money!
At the Ziegel Group monthly Property management fees starts at just $49

https://ziegelgroup.com/about/

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15Feb

Should I hire a Property Management Company?

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Should I hire a property management company?

Some landlords manage properties on their own or with the help of an employee, such as a resident manager. But sometimes landlords need more help or are not interested in nor have the time to deal with the day-to-day issues that arise when leasing real property. That is when a property management company is needed and can be of service.

Property management companies can be a huge asset to your business and even save you money in the long run.

What Does a Property Management Company Do?

At the Ziegel Group our property management company deals directly with prospects and tenants, saving you time and worry over locating, screening, and interviewing prospective tenants, marketing and leasing your rentals, collecting rent, handling  maintenance and repair issues at our discounted rates, responding to tenant complaints, and when necessary, even pursuing evictions. Plus, a good management company brings its know-how and experience to your property, giving you the peace of mind that comes with knowing your investment is in good hands. Finally, the Ziegel Group is an independent contractor, so you avoid the hassles of being an employer.

When Should You Hire a Property Management Company?

Hiring a property management company has its disadvantages and advantages.

Consider the following factors to determine if hiring the Ziegel Group as your property management company would be a good decision for your investment or business.

You should consider hiring a property management company if:

You have little experience in maintaining a house for others. We know to cost of repair and maintenance and use our own in-house staff or contractors at a discounted rate.

You have lots of properties or rental units. The more rental properties you own and the more units they contain, the more you’re likely not to have the time to deal with the day-to-day management of dealing with tenants and thus the more likely you are to benefit from a management company.

You don’t live near your rental property. If your rental property is located far from where you live, hiring a property management company can be invaluable in dealing with the many issues that you will not be able to handle from afar.

You’re not interested in hands-on management. Many landlords look forward to the challenge of finding good tenants and the rewards of maintaining a safe and attractive property on their own. But if you view rental property ownership strictly as an investment and want little or nothing to do with the day-to-day management of your properties, consider hiring the Ziegel Group to manage your property.

Your time is limited. Even if you enjoy hands-on management, you may not have much time to devote to your business, especially if isn’t not your day job. And if you prefer to spend your time growing your business, including searching for new properties, arranging financing for renovations, or changing your business structure, then a management company may be a good way to spend your money.

You don’t want to be an employer. If you hire a resident manager or other employees to help with your property, you become an employer. You’ll have to handle payroll and deal with a host of other legal requirements and considerations. But, because a property management company isn’t your employee (it’s an independent contractor), and neither are the people who work for the company, by using one you avoid the hassles of being an employer.

Your property is part of an affordable housing program. If you participate in an affordable housing program, things can get complicated. Usually, in these programs the landlord receives financial assistance, which may be in the form of a grant, low-interest loan, or tax credits, in return for agreeing to rent at least part of the property to tenants earning below a certain income level. In order to continue receiving the assistance, the landlord must comply with a complicated set of rules. With so much at stake, it’s often worth hiring a property management company that has expertise and experience with the particular housing program in question.

The Ziegel Group. We are here to serve you and would be pleased to have a consultation with you to determine whether we can serve you as your Property Management Company. Call us today to set up an in person, video, or telephonic appointment.

 

 

 

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27Jan

How To Add Value To My Home

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Adding Value to your Home

Are you thinking about making some home improvements, but want to make sure they’re renovations that will actually pay you back in the long run?

Good news: From a complete kitchen renovation to small do-it-yourself projects like repainting light fixtures, there are a variety of cost-effective projects that could help your home have more curb appeal.

If you’re considering making some home improvements, check our list of smart and worthwhile projects.

Project #1: Upgrade Your Bathroom

Do you want to upgrade or remodel your bathroom, but concerned about spending too much money? Fret not. Remodeling your bathroom is one of the most profitable home improvement projects, says Marie Leonard, home improvement expert and author of Marie’s Home Improvement Guide.

“As far as getting a return on your investment, the best money is in upgrading or remodeling your bathroom or kitchen,” says Leonard. “All the realtors will tell people that you have the greatest chance of getting your money back on those two.”

And as far as bathroom improvement projects go, Leonard says you have the option of going big and doing a total renovation (replacing toilet, tub, vanity, floor, etc.), or you could do a simple upgrade, which is much less expensive.

For example, “some people will just replace the toilet and vanity, because tubs are so expensive,” says Leonard. In other cases, “they might put down a vinyl floor or new tile floor and then replace the fixtures, like the faucet and the towel bars. It’s much less expensive [than a total bathroom renovation], but still adds value to your home.”

Project #2: Upgrade Your Kitchen

As Leonard mentioned earlier, upgrading your kitchen is another smart renovation worth investing in.

And Lipford offers a similar view, noting that a kitchen remodel is a smart, worthwhile project that could help increase the value of your home.

“The value of a home is driven by the ‘salability’ of said home,” says Lipford. “A house with an out-of-date or obsolete kitchen is very hard to sell, so a price compromise usually takes place.”

But what if a complete kitchen remodel is not in your budget? Not to worry. Leonard explains how you can make small, yet smart, upgrades:

“You can get new countertops; you can repaint your cupboard doors; you can get new handles; you can update your appliances,” she says. “There are different levels of things people can do, depending on their budget.”

Project #3: Refinishing or Repainting Your Front Door

On first thought, the condition of your front door may not seem like a significant factor in the overall value of your home. But according to experts, you may want to reconsider that thought.

Here’s why: The front door is a very important part of a home’s curb appeal and contributes greatly to the home’s overall value, says Lipford.

“It’s usually the first opportunity to influence a guest to your home, or a potential buyer of your home, because they’re going to see that from the road,” explains Lipford. “It’s the nose on the face of the house, and it’s important to showcase it in the best light that you possibly can.”

Luckily, Lipford says that refinishing or repainting your front door is one of the least expensive home improvement projects, and it’s one you can do yourself – if you’re up for the challenge.

“This is a very do-it-yourself friendly project,” says Lipford. “But if the homeowner is not comfortable tackling this, it is still a very good return on investment, even if you choose to hire a contractor to do the work.”

 

 

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15Jan

How to prepare an apartment to appeal to renters

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Upgrade your aging apartment

Everyone wants more for less. This is especially true with apartment renters. They want their apartments to be modern, spacious, and to include amenities for their rent, but don’t want to pay top dollar. To appease and appeal to potential renters, apartment managers need to upgrade their stale apartments, but at the least possible cost.

When it comes to breathing new life into your stock, focus on four categories that will improve your apartment’s appeal to potential tenants: the inside of the unit, the building’s appearance, energy efficiency, and the “extras” that go along with renting one of your units. Find out from the experts what changes they are making to their stock in order to increase appeal.

What’s on the Inside Counts
A floor-to-ceiling remodel is probably not the fix you’re looking for. And luckily, most apartment stock can be revived without turning to that solution. “In today’s economy, you really can’t build your way to higher rents,” says Armand Brachman, principal at Dominium. “What I mean by that is, you can’t go out and spend a lot of money and expect to get more rent, because right now we don’t have the renters in the marketplace that can afford to pay those rents. Start looking at things that you can do to make a difference and at how you can set yourself apart from your competition. Some of the most common low-cost ways to make a difference are applying new paint, carpeting, and doing a really thorough cleaning.”

The inside of the apartment unit may be clean and freshly painted, but still may not attract renters because there’s nothing special about the unit itself. In that case, try adding an accent. “Offer an accent wall in the living room,” says Christopher Canale, vice president of operations at GPX Realty Partners. “This will cost $50 and sets you apart from the typical white box that they have been walking into.”

After applying that fresh coat of paint, look at the kitchens and bathrooms of the apartment units. “We found that what renters really focus on and that makes a big difference are your kitchens and bathrooms,” Brachman says. Bring tired, outdated units up to today’s standards with simple fixes in the kitchens and bathrooms.

Replacing old cabinet doors and hardware, as well as old countertops, can make a tremendous impact on the unit’s appearance, thereby making it more appealing. “Ideally, if the cabinets need to be replaced, put in new countertops, and that really makes a difference,” Brachman explains. Even if the current cabinets are in good condition, at least update the hardware.

“Upgraded kitchens and baths give a new resident the feel of a home instead of the feel of just renting someone else’s old apartment,” explains Canale. Not only is this good for your tenants, it’s also good for you. “It instills a sense of pride in your resident, who hopefully will take better care of the property.”

In addition, take the time to replace appliances and either replace or thoroughly clean the flooring.

“Change outdated lighting fixtures,” elaborates Canale. “No one wants to live in an apartment that feels old. Updating also sends an unspoken message that you do invest in your property, no matter how small. Outdated apartments do not move easily.”

Outward Appearances Matter
Even though people are taught not to “judge a book by its cover,” they do. The outside appearance of a building can speak volumes about a property’s maintenance standards and upkeep – inside and out. Give your potential tenants the best possible image of your property from the second they pull up to the building – balance your exterior upgrades with the upgrades you make on the interiors.

“Limited amounts of new landscaping and new signage could enhance the appearance of your project,” says Stan Braden, chairman and principal at KTGY. If your complex has carports or uncovered parking spaces instead of individual garages (which can be negative to some tenants), point out the positive aspects – including privacy, open space, and mature landscaping.

Landscaping may work wonders for a unit that is already in good shape, but not if the unit is already worn out due to deferred maintenance or in need of significant repairs. “Consider new roofing, new siding (if applicable), or new balcony railings,” explains Braden. These fixes may be justified to make the project look refreshed. “If you need to replace any exterior material due to termites, dry rot, or other issues, why not select a new replacement material and give your project a new look?” he says.

Brachman agrees with the premise of giving your building a new look by changing the siding. “If you have a little more money available, putting new siding on a building definitely improves the curb appeal and the appearance of your property,” he says.

Energy Efficiency Makes Units Shining Stars
Energy efficiency is on everyone’s mind. Especially if potential tenants are paying their own energy bills, they are interested in units with energy-efficient appliances.

“Take a look at what kinds of things you can do to the property to improve and reduce operating expenses,” recommends Brachman. “That might be things like putting in energy-efficient light fixtures and replacing furnaces (and HVAC systems) with more energy-efficient ones, both of which cut down the operating costs. Start looking at how you can save on energy costs, and ultimately, that helps the bottom line for the owner. Start focusing more and more on those mechanical items.”

These energy-efficient improvements can serve as a marketing tool for your units. “Let’s say that the tenants pay their own utilities,” says Brachman. “We will show them what their utility costs are, and typically, we’ll show them that the new air-conditioning or heating unit will cost them less than the earlier one. Newer equipment works better and is more efficient, and I think tenants appreciate it.”

Replacing older appliances with energy-efficient ones may cost more initially, but you’ll make more money than you would with an empty unit.

Perks Are a Plus
Amenities make your units stand out. “Upgrade the club room, fitness center, and pool/spa area,” says Braden. “Older apartments may have laundry rooms throughout the property with coin-operated washers and dryers. Is there space and proximity to utilities and plumbing to add a stacked washer/dryer to each unit? This is not always practical, but if justified, the existing laundry facilities can be converted to other uses, including tenant storage, an activity area, open space, etc.”

“Ask your tenants and prospective tenants what is most important to them,” says Braden. “Depending on the quality of your on-site management, you may want it involved in the process, or consider a survey of your tenants and potential future residents.” If you can find out what is important to your future and current tenants, you can concentrate your budget on the areas that will attract tenants, and therefore generate income.

Desired perks can be as low-cost as offering “pet friendly” units (no special remodeling or renovations needed to allow pets in certain units) and adding Wi-Fi to the property.

Shop Around
If you don’t know what your competing properties are offering, then you don’t know what you’re not offering and why your units may not be appealing. “Shop your competition,” says Canale. “Where would you prefer to live?”

“If your competition in a marketplace looks better, has had a face-lift, has been remodeled – to stay competitive, you’re going to have to remodel also,” Brachman says. “In today’s environment, there’s more supply than demand. You can’t fall behind your competition, so you always need to be aware of who your competitors are, what they are doing, what their product looks like, their pricing structure, and their rent levels.”

Back to Basics
Brachman gives an example of a unit in Cleveland, to illustrate how the basics of good property management – not a lot of money – can turn around apartment occupancy. “We did some basic painting where it was needed, we added some blinds to the units, and we put new door latches and pulls on the cabinets,” he says. “Just by doing that simple stuff we were able to significantly improve the occupancy of a property that a lot of people didn’t think was leasable.” Picking up trash, cutting grass, and planting flowers are low-cost ways to make your property more appealing and more renter-friendly.

“Just get back to the basics of good property management,” Brachman says. “You don’t have to spend a lot of money; you need to have the people in place to make it look good.”

Source: Buildings.com

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14Jan

Occupants Not Named In Eviction Lawsuit Or Writ Of Possession

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OCCUPANTS NOT NAMED IN EVICTION LAWSUIT

People who are not named as tenants in the rental agreement or lease sometimes move into a rental unit before the landlord files the unlawful detainer (eviction) lawsuit. The landlord may not know that these people (called “occupants”) are living in the rental unit, and therefore may not name them as defendants in the summons and complaint. As a result, these occupants are not named in the writ of possession if the landlord wins the unlawful detainer action. A sheriff enforcing the writ of possession cannot lawfully evict an occupant whose name does not appear on the writ of possession and who claims to have lived in the unit since before the unlawful detainer lawsuit was filed. (See “Writ of possession.”)

The landlord can take steps to avoid this result. The landlord can instruct the process server who serves the summons and complaint on the named defendants to ask whether there are other occupants living in the unit who have not been named as defendants. If there are, the person serving the summons and complaint can serve each of the so-called “unnamed occupants” with a blank Prejudgment Claim of Right to Possession form and an extra copy of the summons and complaint 349

These occupants then have 10 days from the date they are served to file a Prejudgment Claim of Right to Possession form with the Clerk of Court, and to pay the clerk the required filing fee (or file an “Application for Waiver of Court Fees and Costs” if they are unable to pay the filing fee (see The Eviction Process)). Any unnamed occupant who does not file a Prejudgment Claim of Right to Possession form with the Clerk of Court (along with the filing fee or a request for waiver of the fee) can then be evicted.

An unnamed occupant who files a Prejudgment Claim of Right to Possession form automatically becomes a defendant in the unlawful detainer lawsuit, and must file an answer to the complaint within five days after filing the form. The court then rules on the occupant’s defense to the eviction along with the defenses of the other defendants.350 If the landlord wins, the occupant cannot delay the eviction, whether or not the occupant is named in the writ of possession issued by the court.351

Occupants not named in writ of possession

The landlord sometimes does not serve a Prejudgment Claim of Right to Possession form on the unnamed occupants when the unlawful detainer complaint is served. When the sheriff arrives to enforce the writ of possession (that is, to evict the tenants [see “Writ of possession,”]), an occupant whose name does not appear on the writ of possession, and who claims a right of possession, may fill out a Claim of Right to Possession form and give it to the sheriff. The sheriff must then stop the eviction of that occupant, and must give the occupant a copy of the completed form or a receipt for it.352

Within two business days after completing the form and giving it to the sheriff, the occupant must deliver to the Clerk of Court the court’s filing fee (or file an Application for Waiver of Court Fees and Costs if the occupant is unable to pay the filing fee (see The Eviction Process)). The occupant also should deliver to the court an amount equal to 15 days’ rent for the rental unit (the writ of possession must state the daily rental value of the rental unit).

Five to 15 days after the occupant has paid the filing fee (or has filed a request for waiver of the fee), and has deposited an amount equal to 15 days’ rent, the court will hold a hearing. If the occupant does not deposit the 15 days’ rent, the court will hold the hearing within five days.

At the hearing, the court will decide whether or not the occupant has a valid claim to possession. If the court decides that the occupant’s claim to possession is valid, the amount of rent deposited will be returned to the occupant. The court will then order further proceedings, as appropriate to the case (for example, the occupant may be given five days to answer the landlord’s complaint).

If the court finds that the occupant’s claim to possession is not valid, an amount equal to the daily rent for each day the eviction was delayed will be subtracted from the rent that is returned to the occupant, and the sheriff or marshal will continue with the eviction.

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14Jan

Real Estate Descriptive Words and Phrases

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California Real Estate Words Definition

[All words in boldface type are explained in this Glossary.]

abandon/abandonment – the tenant’s remedy of moving out of a rental unit that is uninhabitable and that the landlord has not repaired within a reasonable time after receiving notice of the defects from the tenant.

amount of notice/amount of advance notice -the number of days’ notice that must be given before a change in the tenancy can take effect. Usually, the amount of advance notice is the same as the number of days between rent payments. For example, in a month-to-month tenancy, the landlord usually must give the tenant 30 days’ advance written notice that the landlord is increasing the amount of the security deposit.

appeal – a request to a higher court to review a lower court’s decision in a lawsuit.

Application for Waiver of Court Fees and Costs – a form that tenants may complete and give to the Clerk of Court to request permission to file court documents without paying the court filing fee.

arbitration – using a neutral third person to resolve a dispute instead of going to court. Unless the parties have agreed otherwise, the parties must follow the arbitrator’s decision.

arbitrator – a neutral third person, agreed to by the parties to a dispute, who hears and decides a dispute. An arbitrator is not a judge, but the parties normally must follow the arbitrator’s decision (the decision is said to be “binding” on the parties). (See arbitration; compare to mediator.)

assign/assignment – an agreement between the original tenant and a new tenant by which the new tenant takes over the lease of a rental unit and becomes responsible to the landlord for everything that the original tenant was responsible for. The original tenant is still responsible to the landlord if the new tenant doesn’t live up to the lease obligations. (See novation; compare to sublease.)

California Department of Fair Employment and Housing – the state agency that investigates complaints of unlawful discrimination in housing and employment.

Claim of Right to Possession – a form that the occupants of a rental unit can fill out to temporarily stop their eviction by the sheriff after the landlord has won an unlawful detainer (eviction) lawsuit. The occupants can use this form only if: the landlord did not serve a Prejudgment Claim of Right to Possession form with the summons and complaint; the occupants were not named in the writ of possession; and the occupants have lived in the rental unit since before the unlawful detainer lawsuit was filed.

credit report – a report prepared by a credit reporting agency that describes a person’s credit history for the last seven years (except for bankruptcies, which are reported for 10 years). A credit report shows, for example, whether the person pays his or her bills on time, has delinquent or charged-off accounts, has been sued, and is subject to court judgments.

credit reporting agency – a business that keeps records of people’s credit histories, and that reports credit history information to prospective creditors (including landlords). (See also tenant screening service.)

credit score – a numerical summary of a person’s credit worthiness that is based on information from a credit reporting agency. Credit scoring uses a statistical program to compare a person’s history of bill paying, credit accounts, collection actions and other credit information with the credit performance of other consumers. A high credit score (for example, 750 and up) indicates that a person is a better credit risk, and a low score (for example, 300 – 400) indicates a potential credit risk.

default judgment – a judgment issued by the court, without a hearing, after the tenant has failed to file a response to the landlord’s complaint.

Demurrer – a legal response that a tenant can file in an unlawful detainer lawsuit to test the legal sufficiency of the charges made in the landlord’s complaint.

Discovery – the process through which parties to an action are allowed to obtain relevant information known to other parties or non-parties before trial

discrimination (in renting) – denying a person housing, telling a person that housing is not available (when the housing is actually available at that time), providing housing under inferior terms, harassing a person in connection with housing accommodations, or providing segregated housing because of a person’s race, color, religion, sex (including pregnancy, childbirth or medical conditions related to them, as well as gender and perception of gender), sexual orientation, national origin, ancestry, source of income, age, disability, medical condition, whether the person is married, or whether there are children under the age of 18 in the person’s household. Discrimination also can be refusal to make reasonable accommodation for a person with a disability.

dishonored check – a check that the bank returns to the payee (the person who received the check) without paying it. The bank may return the check because the payor’s (the check writer’s) account did not have enough money to cover the check. This is called a “bounced” or “NSF” check. Or, the bank may return the check because the payor stopped payment on it.

escrow account – a bank account into which a tenant deposits withheld rent, to be withdrawn only when the landlord has corrected uninhabitable conditions in the rental unit or when the tenant is ordered by a court to pay withheld rent to the landlord.

eviction – a court-administered proceeding for removing a tenant from a rental unit because the tenant has violated the rental agreement or lease, or did not comply with a notice ending the tenancy (also called an “unlawful detainer ” lawsuit).

eviction notice (or three-day notice) – a three-day notice that the landlord serves on the tenant when the tenant has violated the lease or rental agreement. The three-day notice usually instructs the tenant to either leave the rental unit or comply with the lease or rental agreement (for example, by paying past-due rent) within the three-day period.

fair housing organizations – city or county organizations that help renters resolve housing discrimination problems.

federal stay (or automatic stay) – an order of a federal bankruptcy court that temporarily stops proceedings in a state court, including an eviction proceeding.

guest – a person who does not have the rights of a tenant, such as a person who stays in a transient hotel for fewer than seven days.

habitable – a rental unit that is fit for human beings to live in. A rental unit that substantially complies with building and safety code standards that materially affect tenants’ health and safety is said to be “habitable.” See uninhabitable and implied warranty of habitability.

holding deposit – a deposit that a tenant gives to a landlord to hold a rental unit until the tenant pays the first month’s rent and the security deposit.

implied warranty of habitability – a legal rule that requires landlords to maintain their rental units in a condition fit for human beings to live in. A rental unit must substantially comply with building and housing code standards that materially affect tenants’ health and safety. The basic minimum requirements for a rental unit to be habitable are available in the Dealing With Problems section.

initial inspection – an inspection by the landlord before the tenancy ends to identify defective conditions that justify deductions from the security deposit.

item of information – information in a credit report that causes a creditor to deny credit or take other adverse action against an applicant (such as refusing to rent a rental unit to the applicant).

landlord – a business or person who owns a rental unit, and who rents or leases the rental unit to another person, called a tenant.

lease – a rental agreement, usually in writing, that establishes all the terms of the agreement and that lasts for a predetermined length of time (for example, six months or one year). Compare to periodic rental agreement.

legal aid organizations – organizations that provide free legal advice, representation, and other legal services in noncriminal cases to economically disadvantaged persons.

lock out – when a landlord locks a tenant out of the rental unit with the intent of terminating the tenancy. Lockouts, and all other self-help eviction remedies, are illegal.

lodger – a person who lives in a room in a house where the owner lives. The owner can enter all areas occupied by the lodger, and has overall control of the house.

mediation – a process in which a neutral third person meets with the parties to a dispute in order to assist them in formulating a voluntary solution to the dispute.

mediator – a neutral third person, agreed to by the parties to a dispute, who meets with the parties in order to assist them in formulating a voluntary solution to the dispute. The mediator’s decision normally is not “binding” on the parties.(See mediation; compare to arbitrator.)

Memorandum to Set Case for Trial – a court document filed in an unlawful detainer lawsuit requesting that the case be set for trial. This document also states whether the plaintiff (the landlord) has requested a jury trial.

Motion to Quash Service of Summons – a legal response that a tenant can file in an unlawful detainer lawsuit if the tenant believes that the landlord did not properly serve the summons and complaint.

negligence – a person’s carelessness (that is, failure to use ordinary or reasonable care) that results in injury to another person or damage to another person’s property.

novation – in an assignment situation, a novation is an agreement by the landlord, the original tenant, and the new tenant that makes the new tenant (rather than the original tenant) solely responsible to the landlord.

occupant – a person who is not named as a tenant in the rental agreement or lease who has moved into a rental unit before the landlord files an unlawful detainer (eviction) lawsuit. Since the landlord does not know that the occupant is living in the rental unit, the landlord may not name the occupant as a defendant in the unlawful detainer lawsuit.

periodic rental agreement – an oral or written rental agreement that states the length of time between rent payments – for example, a week or a month – but not the total number of weeks or months that the agreement will be in effect.

Prejudgment Claim of Right to Possession – a form that a landlord in an unlawful detainer (eviction) lawsuit can have served along with the summons and complaint on all persons living in the rental unit who might claim to be tenants, but whose names the landlord does not know. Occupants who are not named in the unlawful detainer complaint, but who claim a right to possess the rental unit, can fill out and file this form to become parties to the unlawful detainer action.

prepaid rental listing services – businesses that sell lists of available rental units.

relief from forfeiture – an order by a court in an unlawful detainer (eviction) lawsuit that allows the losing tenant to remain in the rental unit, based on the tenant’s convincing the court that the eviction would cause the tenant severe hardship and that the tenant can pay all of the rent that is due, or otherwise fully comply with the lease.

rent control ordinances – laws in some communities that limit or prohibit rent increases, or that limit the circumstances in which a tenant can be evicted.

rent withholding – the tenant’s remedy of not paying some or all of the rent if the landlord does not fix defects that make the rental unit uninhabitable within a reasonable time after the landlord receives notice of the defects from the tenant.

rental agreement – an oral or written agreement between a tenant and a landlord, made before the tenant moves in, which establishes the terms of the tenancy, such as the amount of the rent and when it is due. (See lease and periodic rental agreement.)

rental application form – a form that a landlord may ask a tenant to fill out prior to renting that requests information about the tenant, such as the tenant’s address, telephone number, employment history, credit references, and the like.

rental period – the length of time between rent payments; for example, a week or a month.

rental unit – an apartment, house, duplex, or condominium that a landlord rents to a tenant to live in.

renter’s insurance – insurance protecting the tenant against property losses, such as losses from theft or fire. This insurance usually also protects the tenant against liability (legal responsibility) for claims or lawsuits filed by the landlord or by others alleging that the tenant negligently injured another person or property.

repair and deduct remedy – the tenant’s remedy of deducting from future rent the amount necessary to repair defects covered by the implied warranty of habitability. The amount deducted cannot be more than one month’s rent.

retaliatory eviction or action – an act by a landlord, such as raising a tenant’s rent, seeking to evict a tenant, or otherwise punishing a tenant because the tenant has used the repair and deduct remedy or the rent withholding remedy, or has asserted other tenant rights.

security deposit– a deposit or a fee that the landlord requires the tenant to pay at the beginning of the tenancy. The landlord can use the security deposit, for example, if the tenant moves out owing rent or leaves the unit damaged or less clean than when the tenant moved in.

serve/service – legal requirements and procedures that seek to assure that the person to whom a legal notice is directed actually receives it.

60 day notice – a written notice from a landlord to a tenant telling the tenant that a periodic tenancy will end in 60 days. A 60-day notice usually does not have to state the landlord’s reason for ending the tenancy.

sublease – a separate rental agreement between the original tenant and a new tenant to whom the original tenant rents all or part of the rental unit. The new tenant is called a “subtenant.” The agreement between the original tenant and the landlord remains in force, and the original tenant continues to be responsible for paying the rent to the landlord and for other tenant obligations. (Compare to assignment.)

subpoena – an order from the court that requires the recipient to appear as a witness or provide evidence in a court proceeding.

subtenant – see sublease.

tenancy – the tenant’s exclusive right, created by a rental agreement between the landlord and the tenant, to use and possess the landlord’s rental unit.

tenant – a person who rents or leases a rental unit from a landlord. The tenant obtains the right to the exclusive use and possession of the rental unit during the lease or rental period.

tenant screening service – a credit reporting agency that collects and sells information on tenants, such as whether they paid their rent on time, whether they damaged previous rental units, whether they were the subject of an unlawful detainer lawsuit, and whether landlords considered them good or bad tenants.

three-day notice – see eviction notice.

30-day notice – a written notice from a landlord to a tenant telling the tenant that the tenancy will end in 30 days. A 30-day notice usually does not have to state the landlord’s reason for ending the tenancy.

uninhabitable – a rental unit which has such serious problems or defects that the tenant’s health or safety is affected. A rental unit may be uninhabitable if it is not fit for human beings to live in, if it fails to substantially comply with building and safety code standards that materially affect tenants’ health and safety, if it contains a lead hazard, or if it is a dangerous substandard building. (Compare to habitable.)

unlawful detainer lawsuit – a lawsuit that a landlord must file and win before he or she can evict a tenant (also called an “eviction” lawsuit).

U.S. Department of Housing and Urban Development – the federal agency that enforces the federal fair housing law, which prohibits discrimination based on sex, race, color, religion, national or ethnic origin, familial status, or handicap.

waive – to sign a written document (a waiver) giving up a right, claim, privilege, etc. In order for a waiver to be effective, the person giving the waiver must do so knowingly, and must know the right, claim, privilege, etc. that he or she is giving up.

writ of possession – a document issued by the court after the landlord wins an unlawful detainer (eviction) lawsuit. The writ of possession is served on the tenant by the sheriff. The writ informs the tenant that the tenant must leave the rental unit by the end of five days, or the sheriff will forcibly remove the tenant.

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14Jan

Resolving Landlord – Tenant Problems

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How to resolve Landlord – Tenant Problems?

Resolving Tenant-landlord Problems

TALK WITH YOUR LANDLORD

Communication is the key to avoiding and  resolving landlord tenant problems. If you have a problem with your rental unit, it’s usually best to talk with your landlord before taking other action. Your landlord may be willing to correct the problem or to work out a solution. By the same token, the landlord (or the landlord’s agent or manager) should discuss problems with the tenant before taking formal action. The tenant may be willing to correct the problem once he or she understands the landlord’s concerns. Both parties should bear in mind that each has the duty to deal with the other fairly and in good faith (see Landlord’s and tenant’s duty of good faith and fair dealing).

If discussing the problem with the landlord doesn’t solve it, and if the problem is the landlord’s responsibility (see Dealing with Problems), you should write a letter or send an e-mail to the landlord. The letter or e-mail should describe the problem, its effect on you, how long the problem has existed, what you may have done to remedy the problem or limit its effect, and what you would like the landlord to do. You should keep a copy of this letter or e-mail.

If you have been dealing with an agent of the landlord, such as a property manager, you may want to directly contact the owner of the rental unit. The name, address and telephone number of the owner and the property manager, or the person who is authorized to receive legal notices for the owner, must be written in your rental agreement (or lease) or posted conspicuously in the building.345 You can also contact your County Assessor’s Office for this information.

If you don’t hear from the landlord after you send the letter or e-mail, or if the landlord disagrees with your complaint, you may need to use one of the tenant remedies that are discussed in this booklet (such as the repair and deduct remedy, see Having Repairs Made), or obtain legal assistance. The length of time that you should wait for the landlord to act depends on the seriousness of the problem. Normally, 30 days is considered appropriate unless the problem is extremely serious.

REMEMBER: The landlord and the tenant discussing problems with each other can prevent little problems from becoming big ones. Trying to work out problems benefits everybody. Sometimes, it’s helpful to involve someone else, such as a mutual friend or a trained arbitrator or mediator (see below). If the problem truly cannot be resolved by discussion, negotiation, and acceptable compromise, then each party can look to the remedies provided by the law.

GETTING HELP FROM A THIRD PARTY – The Ziegel Group

Many resources are available to help tenants and landlords resolve problems. Check which of the following agencies are available in your area, review their Web sites to determine if they can offer you assistance, or call or write them for information or assistance:

  • Local consumer protection agency. See the City and County Government listings in the white pages of the phone book.
  • Local housing agency. See the City and County Government listings in the white pages of the phone book.
  • Local district attorney’s office. See the County Government listings in the white pages of the phone book.
  • City or county rent control board. See the City and County Government listings in the white pages of the phone book.
  • Local tenant association, or rental housing or apartment association. Check the white (business) and Yellow Pages in the phone book.
  • Local tenant information and assistance resources. See Appendix 4.
  • Local dispute resolution program. For a list go online to www.dca.ca.gov/consumer/mediation_programs.shtml.

You may also obtain information from the California Department of Consumer Affairs’ Consumer Information Center at (800) 952-5210 or (916) 445-1254. For TDD, call (800) 326-2297 or (916) 322-1700. You can also visit the Department of Consumer Affairs’ Web site.

Many county bar associations offer lawyer referral services and volunteer attorney programs which can help a tenant locate a low-fee or free attorney. Legal aid organizations may provide eviction defense service to low-income tenants. Some law schools offer free advice and assistance through landlord-tenant clinics.

Tenants should be cautious about using so-called eviction defense clinics or bankruptcy clinics. While some of these clinics may be legitimate and provide good service, others are not legitimate. Some of these clinics may use high-pressure sales tactics, make false promises, obtain your signature on blank forms, take your money, and then do nothing.

These clinics may promise to get a federal stay (also called an automatic stay)of an eviction action. This usually means that the clinic intends to file a bankruptcy petition for the tenant. (See “The Eviction Process, A word about bankruptcy“.) While this may stop the eviction temporarily, it can have an extremely bad effect on the tenant’s future ability to rent property or to obtain credit, since the bankruptcy will be part of the tenant’s credit record for as long as 10 years.

Unlawful detainer assistants (UDAs) are non-lawyers who are in business to provide advice and assistance to landlords and tenants on unlawful detainer issues. UDAs must be registered with the County Clerk’s office in the counties where they have their principal place of business and where they do business.346 A tenant who signs a contract with a UDA can cancel the contract within 24 hours after signing it.347

Legal document assistants (LDAs) are non-lawyers who type and file legal documents as directed by people who are representing themselves in legal matters. Similar registration and contract cancellation requirements apply to legal document assistants.348

The fact that a UDA or an LDA is properly registered with the County Clerk does not guarantee that the UDA or LDA has the knowledge or ability to help you.

ARBITRATION AND MEDIATION

Some local housing agencies refer landlord-tenant disputes to a local dispute resolution center or mediation service. The goal of these services is to resolve disputes without the burden and expense of going to court.

Mediation involves assistance from an impartial third person, called a mediator, who helps the tenant and landlord reach a voluntary agreement on how to settle the dispute. The mediator normally does not make a binding decision in the case.

Arbitration involves referral of the dispute to an impartial third person, called an arbitrator, who decides the case. If the landlord and tenant agree to submit their dispute to arbitration, they will be bound by the decision of the arbitrator, unless they agree to nonbinding arbitration. landlord tenant problems

Tenants and landlords should always consider resolving their disputes by mediation or arbitration instead of a lawsuit. Mediation is almost always faster, cheaper, and less stressful than going to court. While arbitration is more formal than mediation, arbitration can be faster, and is usually less stressful and burdensome, than a court action.

Mediation services are listed in the yellow pages of the telephone book under Mediation Services. To obtain a county-by-county listing of dispute resolution services, go online to www.dca.ca.gov/consumer/mediation_programs.shtml.

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14Jan

Retaliatory Actions, Evictions And Discrimination

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Retaliatory actions and eviction

A landlord may try to evict a tenant because the tenant has exercised a legal right (for example, using the repair and deduct remedy, (see Having Repairs Made) or has complained about a problem in the rental unit. Or, the landlord may raise the tenant’s rent or otherwise seek to punish the tenant for complaining or lawfully exercising a tenant right.

In either situation, the landlord’s action is said to be retaliatory because the landlord is punishing the tenant for the tenant’s exercise of a legal right. The law offers tenants protection from retaliatory eviction and other retaliatory acts.338

The law infers (assumes) that the landlord has a retaliatory motive if the landlord seeks to evict the tenant (or takes other retaliatory action) within six months after the tenant has exercised any of the following tenant rights:339

  • Using the repair and deduct remedy, or telling the landlord that the tenant will use the repair and deduct remedy.
  • Complaining about the condition of the rental unit to the landlord, or to an appropriate public agency after giving the landlord notice.
  • Filing a lawsuit or beginning arbitration based on the condition of the rental unit.
  • Causing an appropriate public agency to inspect the rental unit or to issue a citation to the landlord.

In order for the tenant to defend against eviction on the basis of retaliation, the tenant must prove that he or she exercised one or more of these rights within the six-month period, that the tenant’s rent is current, and that the tenant has not used the defense of retaliation more than once in the past 12 months. If the tenant produces all of this evidence, then the landlord must produce evidence that he or she did not have a retaliatory motive.340 Even if the landlord proves that he or she has a valid reason for the eviction, the tenant can prove retaliation by showing that the landlord’s effort to evict the tenant is not in good faith.341 If both sides produce the necessary evidence, the judge or jury then must decide whether the landlord’s action was retaliatory or was based on a valid reason.

A tenant can also assert retaliation as a defense to eviction if the tenant has lawfully organized or participated in a tenants’ organization or protest, or has lawfully exercised any other legal right. In these circumstances, the tenant must prove that he or she engaged in the protected activity, and that the landlord’s conduct was retaliatory.342

If you feel that your landlord has retaliated against you because of an action that you’ve properly taken against your landlord, talk with an attorney or legal aid organization. An attorney also may be able to advise you about other defenses.

Retaliatory discrimination

A landlord, managing agent, real estate broker, or salesperson violates California’s Fair Employment and Housing Act by harassing, evicting, or otherwise discriminating against a person in the sale or renting of housing when the “dominant purpose” is to retaliate against a person who has done any of the following:343

  • Opposed practices that are unlawful under the Act;
  • Informed law enforcement officials of practices that the person believes are unlawful under the Act; or
  • Aided or encouraged a person to exercise rights protected by the Act.

A tenant who can prove that the landlord’s eviction action is based on a discriminatory motive has a defense to the unlawful detainer action. A tenant who is the victim of retaliatory discrimination also has a cause of action for damages under the Fair Employment and Housing Act.

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14Jan

The Eviction Process

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(Unlawful Detainer Lawsuit)

Overview of the eviction process

If the tenant doesn’t voluntarily move out after the landlord has properly given the required notice to the tenant, the landlord can evict the tenant. In order to evict the tenant, the landlord must file an unlawful detainer lawsuit in superior court.

In an eviction lawsuit, the landlord is called the “plaintiff” and the tenant is called the “defendant.”

Recent laws designed to abate drug dealing 295 and unlawful use, manufacture, or possession of weapons and ammunition,296 permit a city attorney or prosecutor in selected jurisdictions 297 to file an unlawful detainer action against a tenant based on an arrest report (or other action or report by law enforcement or regulatory agencies) if the landlord fails to evict the tenant after 30 days notice from the city. The tenant must be notified of the nature of the action and possible defenses.

An unlawful detainer lawsuit is a “summary” court procedure. This means that the court action moves forward very quickly, and that the time given the tenant to respond during the lawsuit is very short. For example, in most cases, the tenant has only five days to file a written response to the lawsuit after being served with a copy of the landlord’s summons and complaint.298 Normally, a judge will hear and decide the case within 20 days after the tenant or the landlord files a request to set the case for trial.299

The court-administered eviction process assures the tenant of the right to a court hearing if the tenant believes that the landlord has no right to evict the tenant. The landlord must use this court process to evict the tenant; the landlord cannot use self-help measures to force the tenant to move. For example, the landlord cannot physically remove or lock out the tenant, cut off utilities such as water or electricity, remove outside windows or doors, or seize (take) the tenant’s belongings in order to carry out the eviction. The landlord must use the court procedures.

If the landlord uses unlawful methods to evict a tenant, the landlord may be subject to liability for the tenant’s damages, as well as penalties of up to $100 per day for the time that the landlord used the unlawful methods.300

In an unlawful detainer lawsuit, the court holds a hearing at which the parties can present their evidence and explain their case. If the court finds that the tenant has a good defense, the court will not evict the tenant. If the court decides in favor of the tenant, the tenant will not have to move, and the landlord may be ordered to pay court costs (for example, the tenant’s filing fees). The landlord also may have to pay the tenant’s attorney’s fees, if the rental agreement contains an attorney’s fee clause and if the tenant was represented by an attorney.301

If the court decides in favor of the landlord, the court will issue a writ of possession.302 The writ of possession orders the sheriff to remove the tenant from the rental unit, but gives the tenant five days from the date that the writ is served to leave voluntarily. If the tenant does not leave by the end of the fifth day, the writ of possession authorizes the sheriff to physically remove and lock the tenant out, and seize (take) the tenant’s belongings that have been left in the rental unit. The landlord is not entitled to possession of the rental unit until after the sheriff has removed the tenant.

The court also may award the landlord any unpaid rent if the eviction is based on the tenant’s failure to pay rent. The court also may award the landlord damages, court costs, and attorney’s fees (if the rental agreement or lease contains an attorney’s fee clause and if the landlord was represented by an attorney). If the court finds that the tenant acted maliciously in not giving up the rental unit, the court also may award the landlord up to $600 as a penalty.303 The judgment against the tenant will be reported on the tenant’s credit report for seven years.304

How to respond to an unlawful detainer lawsuit

If you are served with an unlawful detainer complaint, you should get legal advice or assistance immediately. Tenant organizations, tenant-landlord programs, housing clinics, legal aid organizations, or private attorneys can provide you with advice, and assistance if you need it. (See “Getting Help From a Third Party “)

You usually have only five days to respond in writing to the landlord’s complaint. You must respond during this time by filing the correct legal document with the Clerk of Court in which the lawsuit was filed. If the fifth day falls on a weekend or holiday, you can file your written response on the following Monday or nonholiday.305 Typically, a tenant responds to a landlord’s complaint by filing a written “answer.” (You can get a copy of a form to use for filing an answer from the Clerk of Court’s office or online at www.courts.ca.gov/documents/ud105.pdf.

You may have a legal defense to the landlord’s complaint. If so, you must state the defense in a written answer and file your written answer with the Clerk of Court by the end of the fifth day. Otherwise, you will lose any defenses that you may have. Some typical defenses that a tenant might have are listed here as examples:

  • The landlord’s three-day notice requested more rent than was actually due.
  • The rental unit violated the implied warranty of habitability.
  • The landlord filed the eviction action in retaliation for the tenant exercising a tenant right or because the tenant complained to the building inspector about the condition of the rental unit.

Depending on the facts of your case, there are other legal responses to the landlord’s complaint that you might file instead of an answer. For example, if you believe that your landlord did not properly serve the summons and the complaint, you might file a Motion to Quash Service of Summons. If you believe that the complaint has some technical defect or does not properly allege the landlord’s right to evict you, you might file a Demurrer. It is important that you obtain advice from a lawyer before you attempt to use these procedures.

If you don’t file a written response to the landlord’s complaint by the end of the fifth day, the court will enter a default judgment in favor of the landlord. A default judgment allows the landlord to obtain a writ of possession (see Writ of Possession), and may also award the landlord unpaid rent, damages and court costs.

The Clerk of Court will ask you to pay a filing fee when you file your written response. The filing fee typically is about $180. However, if you can’t afford to pay the filing fee, you can request that the Clerk allow you to file your response without paying the fee (that is, you can request a waiver of the fee). An application form for a fee waiver, called an “Application for Waiver of Court Fees and Costs,”can be obtained from the Clerk of Court or online at http://www.courts.ca.gov/documents/fw001.pdf.306

After you have filed your written answer to the landlord’s complaint, the Clerk of Court will mail to both you and the landlord a notice of the time and place of the trial. If you don’t appear in court, a default judgment will be entered against you.

Special Rules for Tenants in the Military: A servicemember may be entitled to a stay (delay) of an eviction action for 90 days. This rule applies to the servicemember and his or her dependents (such as a spouse or child) in a residential rental unit with rent of $2,400 per month or less, as adjusted by the housing price inflation adjustment. The servicemember’s ability to pay rent must be materially affected by military service. The judge may order the stay on his or her own motion or upon request by the servicemember or a representative. The judge can adjust the length and terms of the delay as equity (fairness) requires.307 Landlords that violate the court-ordered eviction process in regards to a servicemember may face a fine and/or imprisonment for up to one year.307.1

Eviction of “unnamed occupants”

Sometimes, people who are not parties to the rental agreement or lease move into the rental unit with the tenant or after the tenant leaves, but before the unlawful detainer lawsuit is filed. When a landlord thinks that these “occupants” might claim a legal right to possess the rental unit, the landlord may seek to include them as defendants in the eviction action, even if the landlord doesn’t know who they are. In this case, the landlord will tell the process server to serve the occupants with a Prejudgment Claim of Right to Possession form at the same time that the eviction summons and complaint are served on the tenants who are named defendants.308 See additional discussion of “unnamed occupants” and Claim of Right to Possession forms.

Discovery in Unlawful Detainer Cases

Each of the four available discovery procedures requires a minimum of five days’ notice to the landlord before the landlord is required to respond.309 Available discovery procedures in unlawful detainer actions include oral depositions,310 written interrogatories,311 inspection, copying, testing, or sampling of the landlord’s records, things, electronically stored information and places,312 and requests for admissions.313 Under these rules, the landlord must comply with your request for discovery within five days.314 All discovery must be completed on or before the fifth day before the date set for trial.315

  • If you intend to defend your case, and intend to use the discovery process as a tool, you must follow strict timelines applicable to evictions in California.
  • The discovery process works in five-day increments. Once you have been served, you may begin your discovery by mailing any discovery requests. You must allow five days for your request to be received by the landlord. The landlord then has five days to respond to your request. All of the discovery must be completed at least five days before the date of the trial.316

 

Before the court hearing

Before appearing in court, you must carefully prepare your case, just as an attorney would. Among other things, you should:

  • Be mindful that when you have been served with the summons and complaint, you have five days in which to file an answer. You should carefully read the summons, which will have very specific information on how to answer the complaint and the strict timelines. (Please refer to “How to respond to an unlawful detainer lawsuit“.).
  • Talk with a housing clinic, tenant organization, attorney, or legal aid organization. This will help you understand the legal issues in your case and the evidence that you will need.
  • Request discovery of the evidence that may be helpful to your case or to preparing a defense. (See “Discovery in Unlawful Detainer Cases“.)
  • Decide how you will present the facts that support your side of the case – whether by witnesses, letters, other documents, photographs or video, or other evidence.
  • Have at least five copies of all documents that you intend to use as evidence—an original for the judge, a copy for the court clerk, a copy for the opposing party, a copy for yourself, and copies for your witnesses.
  • Ask witnesses who will help your case to testify at the trial. You can subpoena a witness who will not testify voluntarily. A subpoena is an order from the court for a witness to appear. The subpoena must be served on (handed to) the witness, and can be served by anyone but you who is over the age of 18. You can obtain a subpoena from the Clerk of Court. You must pay witness fees at the time the subpoena is served on the witness, if the witness requests them.

The parties to an unlawful detainer lawsuit have the right to a jury trial, and either party can request one.317 After you have filed your answer to the landlord’s complaint, usually the landlord will file a document called a Memorandum to Set Case for Trial (officially called a “Request/Counter-Request to Set Case for Trial” form (Judicial Council Form UD-150).)318 This document will indicate whether the plaintiff (landlord) has requested a jury trial. If not, and if you are not represented by a lawyer, tenant advisers usually recommend that you not request a jury trial.

There are several good reasons for this recommendation: first, presenting a case to a jury is more complex than presenting a case to a judge, and a nonlawyer representing himself or herself may find it very difficult; second, the party requesting a jury trial will be responsible for depositing the initial cost of jury fees with the court; and third, the losing party will have to pay all of the jury costs.319

After the court’s decision

If the court decides in favor of the tenant, the tenant will not have to move, and the landlord may be ordered to pay the tenant’s court costs (for example, filing fees) and the tenant’s attorney’s fees. However, the tenant will have to pay any rent that the court orders.

If the landlord wins, the tenant will have to move. In addition, the court may order the tenant to pay the landlord’s court costs and attorney’s fees, and any proven damages, such as overdue rent or the cost of repairs if the tenant damaged the premises.

It is possible, but rare, for a losing tenant to convince the court to allow the tenant to remain in the rental unit. This is called relief from forfeiture of the tenancy. The tenant must convince the court of two things in order to obtain relief from forfeiture: that the eviction would cause the tenant severe hardship, and that the tenant is able to pay all of the rent that is due or that the tenant will fully comply with the lease or rental agreement.320

A tenant can obtain relief from forfeiture of a lease or a rental agreement, even if the tenancy has terminated (ended), so long as possession of the unit has not been turned over to the landlord. A tenant seeking relief from forfeiture (or the tenant’s attorney) must apply for relief at any time prior to restoration of the premises to the landlord, but such a petition should be made as soon as possible after the court issues its judgment in the unlawful detainer lawsuit.321

A tenant who loses an unlawful detainer lawsuit may appeal the judgment if the tenant believes that the judge mistakenly decided a legal issue in the case. However, the tenant will have to move before the appeal is heard, unless the tenant obtains a stay of enforcement of the judgment or relief from forfeiture (described immediately above). The court will not grant the tenant’s request for a stay of enforcement unless the court finds that the tenant or the tenant’s family will suffer extreme hardship, and that the landlord will not suffer irreparable harm. If the court grants the request for a stay of enforcement, it will order the tenant to make rent payments to the court in the amount ordered by the court and may impose additional conditions.322

A landlord who loses an unlawful detainer lawsuit also may appeal the judgment.

Writ of possession

If a judgment is entered against you and becomes final (for example, if you do not appeal or if you lose on appeal), and you do not move out, the court will issue a writ of possession to the landlord.323 The landlord can deliver this legal document to the sheriff, who will then forcibly evict you from the rental unit if you don’t leave promptly.

Before evicting you, the sheriff will serve you with a copy of the writ of possession.324 The writ of possession instructs you that you must move out by the end of the fifth day after the writ is served on you, and that if you do not move out, the sheriff will remove you from the rental unit and place the landlord in possession of it.325 The cost of serving the writ of possession will be added to the other costs of the suit that the landlord will collect from you.

After you are served with the writ of possession, you have five days to move. If you have not moved by the end of the fifth day, the sheriff will return and physically remove you.326 If your belongings are still in the rental unit, the sheriff may either remove them or have them stored by the landlord, who can charge you reasonable storage fees. If you do not reclaim these belongings within 18 days, the landlord can mail you a notice to pick them up, and then can either sell them at auction or keep them (if their value is less than $300).327 If the sheriff forcibly evicts you, the sheriff’s cost will also be added to the judgment, which the landlord can collect from you.

Setting aside a default judgment

If the tenant does not file a written response to the landlord’s complaint, the landlord can ask the court to enter a default judgment against the tenant. The tenant then will receive a notice of judgment, and a writ of possession as described above.

There are many reasons why a tenant might not respond to the landlord’s complaint. For example, the tenant may have received the summons and complaint, but was not able to respond because the tenant was ill or incapacitated, or for some other very good reason. It is even possible (but not likely) that the tenant was never served with the landlord’s summons and complaint. In situations such as these, where the tenant has a valid reason for not responding to the landlord’s complaint, the tenant can ask the court to set aside the default judgment.

Setting aside a default judgment can be a complex legal proceeding. Common reasons for seeking to set aside a default judgment are the tenant’s (or the tenant’s lawyer’s) mistake, inadvertence, surprise, or excusable neglect.328 A tenant who wants to ask the court to set aside a default judgment must act promptly. The tenant should be able to show the court that he or she has a satisfactory excuse for the default, acted promptly in making the request, and has a good chance to win at trial.329 A tenant who thinks that grounds exist for setting aside a default judgment should first seek advice and assistance from a lawyer, a legal aid organization, or a tenant organization..

Special rules for tenants in the military may make it more difficult for a landlord to obtain a default judgment against the tenant, and may make it possible for a tenant to reopen a default judgment and defend the unlawful detainer action.330

A word about bankruptcy

Some tenants think that filing a bankruptcy petition will prevent them from being evicted. This is not always true.

Filing bankruptcy is a serious decision with many long-term consequences beyond the eviction action. In addition, much of what the public knows about bankruptcy has been changed by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.

A tenant who is thinking about filing bankruptcy because of the threat of eviction, or for any reason, should consult a bankruptcy expert and carefully weigh the expert’s advice.

Bankruptcy is a complicated legal specialty and explaining it is beyond the scope of this booklet. However, here is some basic information about bankruptcy as it relates to unlawful detainer proceedings:331

  • A tenant who files a bankruptcy petition after October 17, 2005 (the effective date of the 2005 Bankruptcy Act) normally is entitled to an immediate automatic stay (delay) of a pending unlawful detainer action. If the landlord hasn’t already filed the unlawful detainer action, the automatic stay prevents the landlord from taking steps such as serving a three-day notice or filing the action.332
  • The landlord may petition the bankruptcy court for permission to proceed with the unlawful detainer action (called “relief from the automatic stay”).333
  • The automatic stay may continue in effect until the bankruptcy case is closed, dismissed, or completed. On the other hand, the bankruptcy court may lift the stay if the landlord shows that he or she is entitled to relief.334
  • The automatic stay normally does not prevent the landlord from enforcing an unlawful detainer judgment that was obtained before the tenant’s petition was filed. In some cases, however, the tenant may be able to keep the stay in effect for 30 days after the petition is filed.335
  • The automatic stay does not apply if the landlord’s eviction action is based on the tenant’s endangering the rental property or using illegal controlled substances on the property, and if the landlord files a required certification with the bankruptcy court. The stay normally will remain in effect, however, for 15 days after the landlord files the certification with the court.336
  • A bankruptcy case can be dismissed for “cause” – for example, if the tenant neglects to pay fees or file necessary schedules and financial information, causes unreasonable delay that harms the landlord, or files the case in bad faith.

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