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Evictions and your Credit - What is an Eviction

Updated on August 23, 2012
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Introduction

Recently I’ve had a few questions as to what is an eviction. In this difficult economy there are a lot of renters wondering what their obligation is when a landlord defaults or declares bankruptcy. In this article I will only be discussing the eviction process after a tenancy ends. I think there is some confusion because anytime someone wants someone to move out, they seem to term it an eviction. I hear things like “I’m being kicked out of my apartment.” or “I need to evict a renter” when they’re really talking about a tenancy ending. A tenancy is nothing more than the use of a property by one person, which belongs to another person, formalized in a rental agreement or lease. It can be a periodic tenancy, such as month-to month, or a fixed term, like one year. If someone has a year lease, at the expiration of that lease, if the landlord accepts the next rent payment, then the tenancy becomes a month-to-month tenancy from that point forward.

The Initial Notice is NOT an Eviction

The landlord will notify the renter of the tenancy ending by giving written notice. This is not an eviction. Information on the required 30 or 60 day notice can be found at my other hub article here. An eviction is actually the result of a court proceeding used by a landlord to remove a tenant from a property because he violated the rental agreement or refused to leave after a notice to end the tenancy. This is known as an unlawful detainer action. For the tenant, moving out, after proper notice is served, prior to the deadline protects them against having a negative mark on their credit report. Even they violated lease terms and were served with a 3-day notice, that is not an eviction. The distinction is important. I’ve had clients in the middle of a dispute looking for a new place to move. They marked that they had been evicted on the rental applications, and found it impossible to get a new place to live. I explained to them that they were in a dispute, but until the judge ruled, it wasn’t an eviction.

The Unlawful Detainer Lawsuit is Filed

Of course, once an unlawful detainer action is filed, they have to answer the complaint and appear in court. Ignoring the lawsuit is not the way to deal with it. Ignoring the summons and complaint will allow the landlord to get a default judgment and that means you lost without even telling your side of the story. One must either respond with an answer or they can file various motions challenging the jurisdiction of the court to hear the case. Examples might include a notice served incorrectly or if the 3 day notice demands more past due rent than was actually due. The unlawful detainer process is an expedited civil suit that is authorized by statue. If the landlord demands more rent than was due, the suit doesn’t qualify, and the court doesn’t have the authority to hear the case. That is why it is usually a good idea to have an attorney represent the landlord to avoid mistakes, and for the tenant an attorney can help find defenses.

Our legal system is conflict based, and I always recommend that the parties try to reach an agreement before going into court. The landlord might be worried about losing or having to start the process over to correct errors. The tenant is also worried about losing, and having a negative mark on their credit report. This “fear” on both sides might help them each compromise to find some middle ground. Most leases, by the way, state that the losing party will pay the other sides costs and attorneys fees.

The unlawful detainer process is unique, in that it is a summary proceeding and very expedited. If you’ve ever heard that it takes a long time for the courts to hear a lawsuit, well that isn’t true with an unlawful detainer. After a tenant is served with the initial summons and complaint, he or she has only 5 days to file the answer. A regular civil action allows 30 days for this.

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Either the Landlord Prevails or the Tenant Prevails

It is worth noting that in some cases a tenant can defend against monetary damages, but still get evicted. This occurs in the case of an illegal rental, where the property owner doesn’t have a certificate of occupancy. The case on point is Gruzen v. Henry (1978) 84 Cal.App.3d 515. There the court denied an award for past rent, but allowed the renter to be evicted.

If the tenant does lose the unlawful detainer lawsuit, then there will be a judgment entered against them. This judgment is a public record, and it will show up on credit reports. Even if the judgment is later paid in full, the judgment will remain on the credit report for seven years.

After Losing, a Tenant Must Move Out

If the tenant loses, they will be given 7 to 10 days to move out of the premises. The landlord will be issued a writ of possession upon the judgment being entered in his/her favor. The landlord can then take this to the sheriff if the tenant fails to move out and ask that the sheriff serve the tenant with the writ. Once served, the sheriff will give the tenant 5 days to vacate the premises, or they will return and physically evict the tenant. The sheriff’s costs will be added to the judgment.

Any belongs which the tenant has in the apartment or house, will be stored by the landlord for a “reasonable” fee. If the evicted tenant does not reclaim the personal property within 18 days, then the landlord can send a notice stating that if not picked up, they will be sold.

It is a stressful process for all parties involved. As I stated earlier, if the opportunity presents itself for a settlement, it is worth exploring. There is more information on evictions and the process at the FAQ section of my site here and the California Department of Consumer Affairs has some great information on their page.

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