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Proving Unlawful Detainer/Eviction For Failure To Pay Rent in California Representation for landlords and tenants: Law Office of Matthew Gary Evans, PC 790 E Colorado Blvd #900 Pasadena, CA 91101 Tel: 626-240-0776 http://www.matthewgaryevanslaw.com 1 © Law Office of Matthew Gary Evans, PC This presentation is not legal advice.
Unlawful Detainer = Eviction The legal term for eviction is unlawful detainer, which is a lawsuit that starts with a summons and complaint filed in court, to which the tenant files a response, after which there is a trial in which the judge or jury will decide if the landlord may evict the tenant and/or how much rent the tenant must pay. – The process can take several months. Landlords must have a judgment for possession from court before they can evict a tenant. Landlords must prove specific facts at the trial in order to get that judgment. California Civil Jury Instruction (CACI, pronounced “Casey”) 4302 states what landlords must prove. These are good elements to learn because they explain the law that applies even if the trial is decided by the judge instead of a jury. 2 © Law Office of Matthew Gary Evans, PC This presentation is not legal advice.
CACI 4302: the factual elements of unlawful detainer 1.The plaintiff (person suing) owns or leases the property; 2.The plaintiff rented or subleased the property to the defendant (person being evicted); 3.The amount of rent due for each period (e.g., per month); 4.The plaintiff properly served the 3 day notice; 5.At least the amount of rent stated in the 3 day notice was due when it was served; 6.The defendant failed to pay the amount stated in the 3 day notice; and 7.The defendant is still in possession of the property. 3 © Law Office of Matthew Gary Evans, PC This presentation is not legal advice.
1. The plaintiff owns or leases the property Only the owner of the property, the owner’s agent (e.g., property manager), or person leasing (e.g., a tenant subleasing to another person) has the legal right (standing) to file a lawsuit for unlawful detainer based on nonpayment of rent. The plaintiff must be able to prove that he is one of those people. 4 © Law Office of Matthew Gary Evans, PC This presentation is not legal advice.
2. The plaintiff rented or subleased the property to the defendant The plaintiff and defendant must be in a landlord- tenant relationship. Ways to prove: rent payments (e.g., checks, money orders), lease agreements, emails, etc. Tenants and subtenants are in a landlord-tenant relationship (the tenant is the “landlord” and the subtenant is the tenant). Cotenants (e.g., roommates who each have a lease with the landlord) are not in a landlord-tenant relationship with each other. 5 © Law Office of Matthew Gary Evans, PC This presentation is not legal advice.
3. The amount of rent due for each period The landlord must prove how much rent was due for each rental period. – E.g., $1,500 per month. There is no law that says rent must be due on a monthly basis. Rent may be due daily, weekly, monthly, quarterly, etc. The rent amount can change subject to the lease agreement and/or rent control laws. 6 © Law Office of Matthew Gary Evans, PC This presentation is not legal advice.
4. The plaintiff properly served the 3 day notice Before the landlord can file the unlawful detainer lawsuit he must serve the tenant with a 3 day notice to pay rent or quit. The content, form and method of service (i.e., delivery) of the notice must comply with detailed laws not covered in this presentation. Defects in the content and/or service of the 3 day notice is a defense against the eviction. The 1 st day of the 3 day notice is the day after it’s served, even if that day is a weekend or holiday. But if the third day falls on a weekend or holiday, it gets extended to the next business day. 7 © Law Office of Matthew Gary Evans, PC This presentation is not legal advice.
5. At least the amount of rent stated in the 3 day notice was due when it was served The past due amount of rent must be stated in the 3 day notice. Understatements of the rent due are ok but not overstatements. E.g., say the past due rent is $3,000 (2 months at $1,500 each). It’s ok if the 3 day notice demands $2,000, but not if it demands more than $3,000. A 3 day notice for nonpayment of rent can only demand rent, not other financial obligations under the lease (e.g., utilities, late fees, repairs, etc.). 8 © Law Office of Matthew Gary Evans, PC This presentation is not legal advice.
6. The defendant failed to pay the amount stated in the 3 day notice Landlords must allow the tenant to pay the amount due in the 3 day notice. Landlords may, but do not have to, allow tenants to pay less than that amount…but if they accept less, they could be deemed to have waived the default and right to evict the tenant. – There is an exception to this ‘waiver’ rule applicable to commercial evictions. If the tenant pays within the 3 day period, the landlord cannot proceed with the eviction. 9 © Law Office of Matthew Gary Evans, PC This presentation is not legal advice.
7. The defendant is still in possession of the property It is not possible to file an unlawful detainer to evict a tenant that has already moved out. – If the landlord wants to sue for unpaid rent from a tenant that has moved out, he can file a regular civil suit for damages or sue in small claims court. But if the landlord files the case first and then the tenant moves out, the case can continue solely as a ‘collection’ action for the unpaid rent, or the landlord can dismiss the case. 10 © Law Office of Matthew Gary Evans, PC This presentation is not legal advice.
Landlords Must Prove All 7 Elements It is not enough to prove most of those elements. The plaintiff's failure to prove, or the defendant's ability to disprove, any of them will mean the landlord will lose and the eviction against the tenant will not proceed. There are different elements that must be proven for other types of unlawful detainer cases such as an eviction for breach of covenants or a post-foreclosure eviction. 11 © Law Office of Matthew Gary Evans, PC This presentation is not legal advice.
Download This Presentation Or Read The Companion Article You can download this presentation and/or read the companion blog article at: http://matthewgaryevanslaw.com/proving- unlawful-detainereviction-failure-pay-rent/ Representation for landlords and tenants: Law Office of Matthew Gary Evans, PC 790 E Colorado Blvd #900 Pasadena, CA 91101 Tel: 626-240-0776 12 © Law Office of Matthew Gary Evans, PC This presentation is not legal advice.
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