We have a woman who rents a room in our house. We told her in October 2007 that she needs to leave by January 10, 2008. (today) This morning she refused to leave. Can we just change the locks and move her stuff out? If not, what do we have to do to make her leave today or some time soon!? Oh, and we live in California.
The correct procedures how to kick someone out?
No.
The Eviction Process
Eviction is the means by which a landlord can legally get you to move out. If you win, you stay put. If you did nothing to stop it, you would lose but have about a month from the filing of the eviction lawsuit before you would be locked out by the Sheriff. If you fight it, getting 2-3 months more time [even if you lose] is easy. My record is 14 months, and it could have been longer. That landlord gave up over $10,000 in back rent just to have the tenant leave, so we settled for that.
As shown in the diagram below, eviction usually starts with a notice, then goes to a lawsuit called an %26quot;unlawful detainer%26quot;, or %26quot;UD%26quot; for short. If you win, you stay in possession and the landlord has to reimburse you for your legal costs. If you lose, the Sheriff has to give you a 5-day notice before a lockout, and finally you leave. You can go back and get your stuff after being locked out. While you're in this process, you pay no rent; you still owe it, but it stays in your pocket. You can use that money to pay for legal expenses to fight the eviction [thanks, Mr. Landlord!] and to pay for moving, if you choose to do that.
Landlords try to scare you into moving, and not fighting it, because they know how much hassle you can give them, and how expensive it can be to get you out. Here are the common myths:
(1) The landlord CANNOT lock you out, remove your property, remove doors or windows, or turn off utilities to get you out, in lieu of court; Civil Code 789.3 prohibits that [for residential tenants] and makes the landlord liable to you for actual costs plus $100 per day that it continues, and the police will back you on this one [Penal Code 484].
(2) The landlord CANNOT have the police or Sheriff arrest you for overstaying your welcome, instead of going to court. The Sheriff may be used to serve the eviction papers, but anything beyond that awaits the court's determination, first.
(3) The landlord CANNOT barge in and start doing major construction to make it impossible to live there, or otherwise interfere with your quiet enjoyment to force you out; Civil Code 1940.2 prohibits that, and makes the landlord liable for $2000 for each such attempt, in addition to your actual losses. The police will back you on this one, too [Penal Code 484].
(4) The landlord CANNOT threaten to report you to immigration authorities or other law enforcement, nor make any other threat to get you out. Civil Code 1940.2 prohibits that, and makes the landlord liable for $2000 for each such attempt, in addition to your actual losses. The police will back you on this one, as well [Penal Code 518].
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UD Flow Chart
Here is the simplified flow chart for an eviction case, what the landlord expects as his %26quot;worst case scenario%26quot;:
This eviction contemplates that you only file an answer, and if you lose, that you simply get locked out without a fight. This eviction takes about a month from start to finish.
Here is the UD Flow Chart considering the many options and circumstances which you may face, and which you can create. It is not complete, because there are several additional circumstances that can arise which if included would make the chart even more confusing. If you start from the upper left corner and follow the arrows through the %26quot;S%26quot; pattern, until you get to TRIAL, where it forks into winning or losing, and forks again at the appeal. The triangles address trouble spots, where the eviction case might have already secretly been over, and you need to take immediate action to have your day in court. The %26quot;discovery%26quot; pattern at the right side happens simultaneously with the demurrer and answer stage, prior to trial. The approximate number of days before the given event is identified in red. You can see and download an Acrobat %26quot;pdf%26quot; version, which is clearer and prints nicely onto legal sized paper, by clicking here: [PDF] You can also view the full-sized version as a %26quot;jpg%26quot; file [JPG]
The eviction lawsuit exemplified in this flow chart could take 6 months or more to complete, and cost the landlord about $10,000-$20,000 to complete. In its simplest version, it can take 2-3 months, and cost you as little as $600 in attorney fees, assuming a typically improper service is challenged by a motion to quash, the defective complaint is challenged by a demurrer, and no jury trial is requested.
You can see this as your game board, where there are several ways to trip up your landlord, who isn't expecting anything like this amount of complication. Playing the game better than your landlord proves to be a humiliating experience for him. It also gives you the leverage you need to prepare for trial, get more time to look around and move out, or to negotiate a settlement when the humiliation becomes unbearable. After all, the idea of filing the eviction was to scare you out, and bully you. When you're taking your time, costing the landlord money, and laughing at him, with all the other tenants taking note, the landlord's plans for making quick work of you come to a screeching halt. The Big Bad Wolf can't win.
You should also know that if you cannot afford the filing fees, you can get the fee waiver application forms from the Court Clerk, and submit them in lieu of actual payment. When in doubt, do that, because it may be granted, it gives you more time, and it protects your case file from others viewing it.
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Taking Action
Now that you have an idea of what is in store, you need to decide how you want to approach this. You have three options available, depending on your budget, need for time, and the complexity of your case.
1. Eviction Defense Kit [click]
If you are low on funds and cannot afford to hire a lawyer, at all, the Eviction Defense Kit on this site is your best option. The Kit explains all of your defenses, your strategy, how to fill out the forms, how to conduct discovery, how to prepare for trial, how to pick a judge, how to present yourself at trial, and what happens afterwards. It has the Answer form and form interrogatories, along with some organizational forms. Even if you also hire a lawyer, the Kit gives you details about the process which will put you at ease and help you work with the lawyer.
Pros: The Kit is only $20, and can be purchased online from this website. It comes back immediately as an Acrobat %26quot;pdf%26quot; attachment to an email, like a vending machine. You pull up the Kit on your computer and print out what you want, fill in the forms on your computer, and you have professional-looking, and properly prepared papers for your case.
Cons: The Kit does not include the motion to strike, demurrer, motion for relief from default, motion for automatic stay, appeal documents, other discovery devices, motions to compel, and other papers which a lawyer needs to prepare for you. Therefore, using the Kit will get you to trial in about 2-3 weeks, not 2-3 months. If time is a strong consideration, getting the Kit is probably not your best option.
2. Consultation and Drafting by Ken Carlson [Click]
You can either pay for Ken Carlson to (a) consult with you and draft papers for you in a piecemeal basis or (b) pay for complete case monitoring on an hourly basis. You begin with a phone consultation, after faxing the paperwork to him. He then evaluates whether a motion to quash or demurrer is your best choice for a first paper, and gives you an overall strategy and complete understanding of your defenses. If you choose the piecemeal basis, you pay him to prepare the paperwork at the set rates, and pay for each consultation at $100 per half-hour, and take responsibility for monitoring your own case, and when the next papers are due. If you choose the hourly basis, Ken also monitors the case and acts as your lawyer would, except that his name does not go on the paperwork. When it comes time to go to trial, Ken helps you find a trial lawyer to %26quot;substitute in%26quot; and appear on your behalf, just like the big law firms do it. Ken brings that lawyer up to speed.
Pros: This is the least expensive way to buy the most time. You have the benefit of Ken's expertise, both in the drafting of the paperwork and the strategy for your particular case. Buying time gives you breathing room to look around for another place, if you wish, as well as permits a more thorough discovery process to make you better prepared for trial. Often, the landlord's paperwork is riddled with flaws, which are not apparent even to the typical lawyer, but Ken often gets the judge to order the landlord to start over again, and perhaps even again after that. Since you are not paying for Ken to drive to and sit around in court, or haggle with the other lawyer over the phone, you get the essential benefit of having a lawyer without the wasteful parts of litigation. If you don't excessively use his time, you can often achieve the months of extra time at a small fraction of what your rent would have been, so that you can save up for a move while still affording his legal assistance. You save the costs of gas and parking coming to a law office, because everything done by is phone, fax, e-mail, and regular mail. For those who have video-conferencing through their computer, a virtual face-to-face consultation is available. For cases in the Los Angeles area where Ken used to practice, his personal relationships with many of the lawyers can help resolve things in an amicable fashion, or warn the landlord that this may be a hellish experience.
Cons: For some people, having the lawyer in a face-to-face meeting is important, and worth the extra money. Ken's consultations are all over the phone, and paperwork is exchanged by e-mail and fax, as well as regular mail, not in person. Ken cannot appear in court for you for two good reasons: (1) he is busy just handling the website and these types of cases, and (2) it is economically infeasible for Ken to travel all around the State in each courthouse where his client's cases are. The other lawyer talks to you, not Ken, so you may not know what to say, or how to handle things when caught off guard. For some of the minor hearings before trial, the other lawyer may take advantage of the fact that you don't know how to handle some of the technicalities, or exploit the judge's bias, and get a minor victory. Ken hands off the case to a local lawyer of your choice for purposes of trial, and there is some time spent bringing the new lawyer up to speed, to be ready to go to trial. Generally, this is not a problem, but the new lawyer may disagree with some of the legal points and strategy developed by Ken, or he/she may prefer to settle the case rather than go to trial.
3. Hiring a Local Lawyer [click]
The California Tenant Law website contains the most complete list of lawyers who will represent tenants in California. The list is arranged by geographic region, and then by city, with no particular order after that. Each listing has the name, address, and telephone number of the lawyer, and if they have it, their e-mail and website address. If there are restrictions by these lawyers on the type of case, it is shown. Many of them represent both landlords and tenants, as Ken did, but some only represent tenants. Since this website is NOT a lawyer referral service, there is NO recommendation made.
Pros: Having a lawyer handle the case from the beginning has the primary advantage of continuity, and a secondary benefit of the interpersonal contact. The lawyer has you in their office in a face-to-face meeting, which is more comfortable for some people than merely talking over the phone or through e-mails. You can watch the lawyer in action in other tenants' cases, and get a better idea of that lawyer's skill and ability. You can drive to the lawyer's office to pick up or drop off original papers and photos, rather than wait for the mail to deliver them, where timing is critical. When the other lawyer makes contact, he/she talks to your lawyer, not you. Therefore, you are less vulnerable to unfair manipulation in person or before the judge in those minor pre-trial hearings.
Cons: The main disadvantage of having a lawyer officially representing you is the cost. You are paying either a large flat fee or on an hourly basis for whatever they do for you. A small court hearing can easily cost you $500 between the travel time, parking fees, and waiting time in court, in addition to the document preparation and consultations with you. Also, telephone calls and letters from the other lawyer, or witnesses, or the Court are all billable time for your lawyer, even if they don't advance your case very much, and you could have handled it yourself. There is a lot of wasted time in the legal system which is unavoidable for your lawyer, who is responsible to handle all of it. You can't %26quot;help%26quot;. Also, the interpersonal relationship you begin with may disintegrate as your lawyer has the secretary or paralegal making contact with you, or the lawyer has phone consultations with you, anyway. If you come on an appointment, you may have to wait for the prior consultation to finish, or for the lawyer to get back from court where the hearing took longer than expected. Much of the work by the lawyer's office may be done by subordinate staff, rather than the lawyer, who may just glance over it and sign. The local lawyers may not have the expertise that someone like Ken does, so the quality of work may not be as good.
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Other Considerations
Bankruptcy
You may have heard that a bankruptcy can stop the eviction, but it only delays the process. Federal Bankruptcy law automatically %26quot;stays%26quot; [stops] an eviction action. However, the over-use of bankruptcy to stall evictions has caused the Bankruptcy Courts to create a special process to quickly reinstate the eviction. Consequently, if you were to file a bankruptcy with the intent to delay the eviction, the stay could be %26quot;lifted%26quot; within as little as 2 weeks, and probably less than 4 weeks, and you're back where you were.
If you were planning to file a bankruptcy anyway, it MUST be filed before trial, not after you lose the trial. Before trial, the landlord has to go to the Bankruptcy Court to get permission to continue with the eviction, and then reset a new date fro the trial, all of which can easily take a month. A bankruptcy filed after you lose your case can reduce your payment of that judgment amount, but it DOES NOT NECESSARILY STOP THE LOCKOUT. There are technical circumstances and rules about that, which are beyond the scope of this website.
Tenant Blacklisting
One of the most insidious aspects of evictions comes from credit reporting services. If you do not win your case, or it is not dismissed within 60 days after your eviction action has been filed, these companies inspect the court records and write down the names of all defendants. When you go to apply for an apartment after that, the property management company checks the blacklist, and if your name is on it, your application will probably not be considered. For the rest of your life, whenever you try to rent an apartment, your name on that blacklist will stand in the way. Even if the person was named as a defendant by mistake, and the case against them is dismissed, that person's name stays on the %26quot;blacklist%26quot; forever.
If your case is dismissed or you win within the 60-day period, your case is %26quot;sealed%26quot; and the blacklisting companies cannot access it without a court order. It is also possible to get the judge to %26quot;seal%26quot; your case after the 60 days expires, such as where that condition is part of your settlement agreement. Judges are reluctant to do that, but there is no legal prohibition to such an order.
For more information on Tenant Blacklisting, click HERE.
Collection of the Judgment
By the Landlord:
Just because you get more time to move doesn't mean that you owe nothing to the landlord for the time you stayed. The Court can still award full rental value for the entire period of time you were in possession, unless you can settle the case for no rent or a lesser payment, or you filed a bankruptcy. Interest on the judgment continues to accrue at 10% per year - higher than the bank.
Although most landlords don't try to collect the rent, some never give up. Among the collection efforts readily available to the landlord are: attaching your bank account, garnishing your wages, and filing an %26quot;abstract of judgment%26quot; in the County Recorder's office. If you keep the same bank account, the landlord can just send the Sheriff/Marshal there with %26quot;levy%26quot; instructions, and the bank has to hand over the money. If the landlord knows where you work, the Sheriff/Marshal can come there with instructions for the employer to take out 1/4 of each paycheck for payment to the landlord. The Abstract of Judgment will show up in credit reports and when you try to buy or sell real property - the landlord has to get paid, plus the accrued interest and levying fees.
The point is that when you delay, and you get the time you want, it is best to settle your case, with the intent to give you the kind of closure you would like. You certainly don't want an old debt haunting you as you try to go on with life. There are ways around these problems, which your attorney can explain to you.
By You:
If you win the eviction case, the landlord has to at least reimburse you for your court filing fees. If the rental agreement or your defense permit attorney fees, you are entitled to an award of reasonable attorney fees as well, even if you don't have an official attorney [Mix v. Tumanjan], such as where Ken is helping you. This is a money judgment which you can collect in a number of ways, including sending the Sheriff to the landlord's bank and taking money from his account, having the Sheriff collect rents from your neighbors which the landlord would otherwise get, having the Sheriff take the landlord's car and selling it, or having the Sheriff put the rental property up for sale at an auction. Each of these requires you to advance the costs, and some are more expensive than others. However, when you collect, the Sheriff adds those extra costs on the judgment amount being collected, so your landlord pays for your collection efforts. You can also put a lien on all the landlord's property, so he can't sell or refinance it without you being paid, and interest at 10% per year does accrue on his judgment as well.
Of course, you CAN make an agreement to deduct the judgment from your rent, or the landlord can simply write you a check for the full amount. Landlords just HATE to do that, because it's like paying for the beating. They are, anyway, but that doesn't keep them from hating it. After all, paying you money after losing a fight that they started was not what they had planned, and it leaves an understandably bad taste in their mouth, maybe enough not to try it again. You never know.
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Still have questions or need clarification? You can e-mail your questions, but keep it brief.
updated 1/8/07
The correct procedures how to kick someone out?
Make life living there a living hell then she will leave
check local codes in your area. Here in Texas you HAVE to give an eviction notice signed by a judge. But once you do that, the cops help you move her out....
