Unlawful detainers and evicting a tenant from your residential rental property
Notices, summons, complaint, unlawful detainer, writ or possession, sheriff lock out
NOTICING, SUMMONS AND COMPLAINT
The first step of the 3-step process is noticing the tenant for delinquency in rent or lease violations. Most commonly property management companies in San Diego will use the ‘3 day notice to perform covenant or quit’. This means that the tenant has 3 days to correct the lease violation and/or pay rent. If they do not, then they must quit, meaning they leave the property. If there is no response or performance by the tenant within the 3 days, it is now time to hand the noticing over to a Real Estate Attorney specializing in evictions. Attorneys use a registered process server to deliver notices to the tenant(s). Often-times, San Diego property management companies will miscalculate the monies owed by the tenant or incorrectly refer to the lease violation, so it is important to have the eviction attorney deliver their own notices, even if they are redundant. Inaccurate notices commonly lead to a victory in court by the tenant. As an example, property managers may only notice the tenant for unpaid rent, and no other fees or penalties may be incorporated into the dollar amount owed in the notice
A summons, also known as a judicial summons, is a legal document issued by the eviction court. This civil summons is accompanied by a complaint. Serving the complaint is the procedure by which a plaintiff to a lawsuit (or the representing attorney) serves appropriate notice of initial legal action to the defendant. The court will accept this effort as an attempt to legally exercise judicial jurisdiction over that person, allowing that person to respond to the proceeding before the court. Notice is furnished by delivering a set of court documents (called process) to the person to be served.
The following are the acceptable methods for delivering notices, summons and complaints. Apartment property management companies in San Diego who have many notices to deliver each month have a greater chance of making a mistake, so great care must be taken while preparing and delivering each notice.
Personal Service – Travel to the property, if the tenant is home and opens the door, you may simply hand the notice to the tenant.
Substitute Service – If the door is opened by someone other than the person being served with a notice, they the notice may be handed to that person. This is a less acceptable method, since it is often times hard to determine if the person whom you handed the notice to is a minor under the age of 18. An identical copy of the notice must be mailed the same day using the United States Postal System.
Post and Mail Service – If nobody is home or nobody has answered the door, you may tape a notice to or near the front door to the domicile. An identical copy of the notice must be mailed the same day to the tenant at the address that you posted the notice. Starting on the day after the post and mail service, 3 business days (excluding weekends and holidays) must elapse before the notice has expired.
The greater proportion of unlawful detainers filed by landlords and San Diego property management companies are related to delinquent rent and hold over tenancy.
An unlawful detainer is the process of re-gaining possession of a rental property legally through the judicial process. The interpretation of an unlawful detainer refers to a habitation situation where a tenant is in possession of an apartment or leased property and refuses to leave their residence while being delinquent on rent. The second most common situation is when a tenant stays past the conclusion of their lease, which is also known as hold over tenancy. Property management companies in San Diego are less often successful in attempting to evict a tenant for most lease violations other than non-payment of rent and hold over tenancy.
WRIT OF POSSESSION
The tenants have a limited statute of time to respond or not respond to the summons. In cases of non-response, the landlord will win by default judgement, even when represented in court by the Broker as part of your rental property management services agreed to in the property management agreement. If your tenants file a response, a court date will typically be scheduled no more than 30 days after the response. When the court rules in favor of the landlord, a writ of possession will be ordered and delivered to the owner or the property management companies’ Broker.
When the court decides on a judgment in the landlords’ favor, restitution for court costs and attorney fees if any will be awarded. At this stage a ‘writ of possession’ will be issued and usually takes about 2 weeks to be delivered by mail. This writ is inclusive of instructions to the sheriff to lock the tenants out of the property and maintain the peace while locks are changed by the San Diego property management companies’ locksmith. However, initially the sheriff will go to the property and notify them that they must vacate the property, including removing personal possession within five days. If the tenant refuses to vacate, they will be forcibly removed.
The total eviction process takes 45-60 days depending on the time of year and can be delayed further by Holidays. As part of your rental property management services, San Diego property managers will often pre-emptively try to negotiate with the tenant to vacate by offering leniency or ‘cash for keys’, as to avoid the time and expense of the eviction process.