When and How a Landlord Can Evict a Tenant

tytanium | 02.25.19

How to evict a tenant

WHEN AND HOW CAN A LANDLORD EVICT A TENANT?

Landlords may want to evict a tenant for cause (meaning the tenant did something wrong like failing to pay rent or engaging in destructive or illegal activity) or without cause (meaning the tenant did nothing wrong, but the landlord is no longer interested in renting to them).

In general, the following rules apply:

Fixed-term Lease Eviction Without Cause

If the tenant has a fixed-term lease (for example, a one-year lease), a landlord cannot terminate the tenancy early absent cause during the lease period.

Fixed-term Lease Eviction When Tenant Stays Past the Lease Term

If a tenant holds over past the lease term, they can be evicted without notice. In other words, an unlawful detainer complaint can immediately be filed with the court. Code Civ. Proc. § 1161; Caste Park No. 5 v. Katherine (1979) 91 Cal.App.3d Supp. 6. This rule applies to illegal subtenants as well.

Periodic Lease Term/No Lease Term Eviction Without Cause

A landlord can terminate a periodic tenancy (aka: a lease for month-to-month or week-to-week) or a tenancy that has no lease at all without cause only upon delivering written notice. If the tenant holds over after the notice term is up, an unlawful detainer complaint can then be filed.

  • If the tenant has a lease that is less than month-to-month and has been at the property less than 30 days: the notice must be as many days as the residency at the time of serving the notice. Civ. Code § 1946.
  • If the tenant has no lease and has been at the property for less than 30 days: the notice must be as many days as the residency at the time of serving the notice. Civ. Code § 1946.
  • If the tenant has a lease that is less than month-to-month but has renewed it enough times that they have lived at the property for 30 days or more but less than 1 year: the landlord must give the tenant a 30-day notice to vacate the premises.
  • If the tenant has no lease but has been at the property for 30 days or more but less than 1 year: the landlord must give the tenant a 30-day notice to vacate the premises.
  • If the tenant has a month-to-month lease and has been at the property 30 days or more but less than 1 year: the landlord must give the tenant a 30-day notice to vacate the premises.
  • If the tenant has been living on the premises for one year or more under any circumstances other than with a fixed-term lease: the landlord must give the tenant a 60-day notice to vacate the premises.

If the tenant is still living on the premises after the notice has been given, an unlawful detainer complaint can be filed.

Any Lease (or No Lease): Eviction With Cause

When the tenant has done something wrong, the landlord can give a 3-day notice for the tenant to either cure their wrong or leave the property.

  • If the tenant cures the wrong, there is no cause to evict. See above for methods to end the tenancy.
  • If the tenant does not cure the wrong, an unlawful detainer complaint can be filed immediately after the 3-day notice is up.

Grounds for 3-day notice:

  • Failure to pay rent
  • Violation of any provision of the lease or rental agreement
  • Committing waste (i.e. materially damaging the rental property)
  • Using the rental property for an unlawful purpose
  • Committing nuisance: substantially interfering with other tenants
  • Committing domestic violence or sexual assault against, or stalking, another tenant or subtenant on the premises
  • Engaging in drug dealing or unlawfully using, cultivating, importing, or manufacturing illegal drugs
  • Using the building or property to conduct dogfighting or cockfighting
  • Unlawful conduct involving weapons or ammunition

The terms of the lease may alter these standard guidelines. In general, though, a lease may only increase the notice/rights of the tenant and not decrease those rights. For example, a lease may provide that a tenant will receive a 30-day notice to cure or vacate under any circumstances, thus giving the tenant a greater notice window than provided by law. But a court would likely find illegal and improper a provision that gave the tenant less notice.

Though eviction without cause is permitted as set forth above, it is never acceptable for a landlord to evict a tenant for a discriminatory reason (the tenant is pregnant, the tenant is a certain race/religion/gender/etc.) A good rule of thumb is that if the reason you wish to evict the tenant has anything to do with the tenant, then your case should fit into the “for cause” bases for eviction. Proper “without cause” evictions are situations where you would wish to evict the tenant regardless of who the tenant is. For example: you plan to sell or renovate the property, you have a family member who needs to use the premises, you no longer wish to be a landlord, etc.

A landlord may never use self-help mechanisms to evict a tenant. The process of legal eviction can be costly and time-consuming. A landlord may be tempted to provide a shortened notice period, change the locks, turn off utilities, or harass the tenant into leaving. You may not do so. Eviction laws are strictly enforced. Even an improperly worded notice may be deemed insufficient. For this reason, it is always advisable to retain qualified counsel with experience in unlawful detainer law to assist you with the eviction of a tenant.

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