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Len Watkins
Joshua Genser
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Offices
in Point Richmond and Emeryville
125 Park Place, Suite 210
Point Richmond, CA 94801
Phone: 510-237-6916
Fax: 510-236-9851
2200 Powell Street, Suite 890
The Watergate Office Towers
Emeryville, CA 94608
Phone: 510-237-6916
Fax: 510-236-9851
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Evictions
and Other Landlord-Tenant Disputes
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a residential tenant has not paid rent, the landlord
may kick the tenant out of the apartment or house,
called an "eviction," and may obtain a judgment for the unpaid rent. However, there are numerous rules
the landlord must follow, to the letter. Any deviation
from those rules may result in the invalidation of
the eviction, forcing the landlord to start over, and
delaying the eviction. Generally, that procedure is
as follows: |
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The
landlord must serve on the tenant a written three-day
notice to pay or quit. This notice must set forth
accurately the amount of rent that the tenant
must pay to avoid an eviction. If the tenant
pays it within the three-day period, the tenant
cannot be evicted based on the failure to pay
rent. |
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If
the tenant hasn’t paid within the three days,
the landlord may file a lawsuit called "Unlawful Detainer." The lawsuit papers, the "Summons" and "Complaint," must be "served" on the tenant. "Service" usually means the papers have been delivered to the tenant personally, but there
are other ways of effecting service if personal
delivery cannot be accomplished. |
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The
tenant has five days after service of the Unlawful
Detainer to file an Answer. Forms for filing
an Answer can be obtained from the Court Clerk’s
office, at any law library, at many public libraries,
and at many office supply stores. The tenant
must fill out the form, sign it, and file it
with the clerk of the court in which the lawsuit
has been filed. The tenant must also send a copy
to the landlord’s attorney if there is one, or
to the landlord if there is no attorney. |
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If
the tenant files an Answer, the landlord must
ask the Court to set a trial date, which is supposed
to be within twenty days of the request. |
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At
the trial, the landlord must prove that he or
she is the landlord, and that the tenant owes
rent that hasn’t been paid. If the landlord proves
those things, the judge will issue a Judgment,
awarding the landlord possession of the apartment
or house and permitting the landlord to collect
the unpaid past due rent. |
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The
landlord must then get a Writ of Execution from
the Court Clerk, and arrange for the Sheriff
to evict the tenant. |
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If
the landlord thinks there is any hope of actually
recovering anything from the tenant (after all,
the tenant presumably stopped paying rent because
of financial difficulties), then the landlord
may attempt to collect from the former tenant
by garnishing wages or attaching bank accounts
or other assets. |
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This
entire process can take as little as forty days, but
can also be extended by a wily tenant or tenant’s attorney
to a much longer period. You should consult with an
attorney, but you should also consider negotiating
to get the apartment vacated. It will take the landlord
at least a month to evict the tenant, and the landlord
probably doesn’t ever expect to recover the unpaid
back rent. (Presumably, the tenant is not paying because
the tenant doesn’t have the money.) The tenant doesn’t
want a judgment against him or her, and needs a little
time to find another place to live. Everybody wins
if the tenant and the landlord can agree that, if the
tenant vacates the apartment on a date certain, the
landlord will not go after the tenant for the unpaid
rent.
Joshua Genser recommends that residential landlords consult with
Richard Alexander, 510-232-9100. (Be sure to tell him that Joshua
Genser referred you to him!) Only if you have an extraordinary problem
would retaining Genser & Watkins
be an economical solution for a residential eviction.
Residential tenants should call the Attorney’s Reference Panel of
the Contra Costa Bar Association, look in the Yellow Pages, or ask
friends, family and acquaintances for recommendations.
Commercial evictions can be much more complicated than residential.
If the eviction is based on non-payment of rent, commercial evictions
are much the same as residential. However, commercial evictions are
often triggered by other causes, such as breaches of non-rent provisions
of a lease, or because the landlord wants to use the property for
something else. Commercial leases are generally longer and more complicated
than are residential leases.
In fact, the problems that may crop up in a commercial landlord-tenant
relationship are more varied and more complex than those that arise
in the residential context. Commercial leases, therefore, should
be carefully drafted so that there are no ambiguities, and so that
the costs of resolving potential controversies are minimized. Issues
arising frequently between commercial landlords and tenants include: |
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The
distribution of risk of damage to the property
and responsibility for repairs and maintenance.
The lease should expressly state who is responsible
for maintaining the roof, the windows, exterior
and interior walls, the heating and ventilation
system and plumbing. |
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The
ownership of fixtures and improvements to the
premises. The lease should expressly state who
owns any signs, counters and other fixtures the
tenant may wish to attach to the building. |
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Taxes,
assessments and utilities. Commercial leases
often obligate the tenant to pay increases in
taxes and other costs of owning the building.
Both parties should be certain they understand
the extent of these contingent payments, and
the formula for determining their amounts should
be simple. |
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Terms
and options. Commercial leases often provide
for terms of five years or more. Both landlords
and tenants should understand the risks and benefits
of shorter and longer terms. Leases also frequently
contain options for extending the term. The method
of exercising such options should be explicit,
or else there may be an argument down the road
over whether the lease option has been exercised. |
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attorneys with Genser & Watkins have been representing businesses and individuals in West Contra Costa
County since 1983, drafting, negotiating and reviewing
commercial leases and litigating commercial evictions.
Either landlords or tenants should call 510-237-6916
for an appointment. |
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