California Eviction Form
Your first experience evicting a tenant can be scary, frustrating, time-consuming, and expensive if you do not know what you are doing. The good news is that the process does not have to be that way. If you hire an attorney then you can have all of the work taken care of for you. They will fill out the paperwork the correct way for you, go to court for you, serve your tenant, go back to court for you if necessary. The downside to using an attorney is that they do not come cheap. You will be looking at paying the attorney anywhere from $500-$1200, maybe even more if the tenant chooses to fight back in court. The attorney fees are on top of what you are already going to pay to file for the unlawful detainer, writ of possession fee, and sheriff’s eviction which is going to total around $400 already.
Over the years, I have had the unfortunate experience of evicting a few tenants. In that time I have never had to retain an attorney to evict tenants and I have done all of my own paperwork. The reason I was able to successfully evict tenants and properly fill out all of my own paperwork without the services of an attorney is because I used the California Landlord’s Law Book. The author, David Brown, is an actual attorney and has worked on hundreds of cases involving landlord/tenant disputes. The book walks you step by step, from beginning to end through the eviction process. The book has samples of every form that you must fill out starting with the 3 day pay rent or quit notice, to every one of the detailed documents required by the court. Each form is explained and the author goes line by line and tells you how to fill each form out, which option to select, which checkbox to check, how many copies to make, etc. Without this book I would have either had to hire an attorney, or spent weeks or maybe even months of extra time trying to figure out the eviction process. I would highly recommend this book if you are a landlord. Even if you have not had to evict someone yet, if you are a landlord for long enough eventually you will probably have to evict one of your tenants. Also, there are many other issues discussed in the book suck as how to obtain a money judgment. You can find the book and more information here.
Once you have obtained the Writ of Possession you are almost done with a very lengthy and frustrating process. My first time doing an eviction I was shocked to find out that you must pay for the sheriff’s services to carry out the eviction. The fee was $125, but this will vary from county to county so be prepared for yet another expense. You will have to go to the sheriff’s department to pay the fee and show proof of the Writ of Possession. The sheriff will post a notice at the property informing the tenant that they have 5 days to vacate the premises. If the tenant does not leave within the five days the sheriff will meet you at the property and remove the tenant. Hopefully the tenant will realize that they will be forced to leave and will move voluntarily before the 5 days is up. Any property left behind by the tenant will need to be stored by the landlord for 2 weeks. During that time the landlord must try to contact the tenant to arrange for them to pick up their belongings. If the tenant does not respond then the landlord can keep, sale, or dispose of the tenant’s belongings.
After the tenant has been served they will have 5 days to respond to the court. If the tenant does not respond then the landlord can request the court clerk to enter a default judgment, but the landlord has to wait a minimum of 5 days before requesting the Entry of Default. It is important to understand that if the tenant does not respond after 5 days that a default judgment is not automatically issued. The tenant can respond to the Complaint until the landlord files the Request for Entry of default even if 5 days has passed. The landlord must fill out forms CIV-100 (Entry of Default), and UD-110 (Clerk’s Judgment). A copy of form CIV-100 must also be mailed to the tenant. These forms can be found here and instructions for filling the forms out can be found in The California Landlord’s Law Book: Evictions. If the landlord is going to sue the tenant for back rent or any other money owed it would be best that they first get the possession of the property restored first. After the property has been restored to the landlord he can later request a money judgment. Again this is all explained in David Brown’s book, but is beyond the scope of this article.
If a tenant feels there is a legitimate reason for not paying rent sometimes they will decide to fight the landlord, which will delay the eviction process. After the tenant responds to the Complaint a court date will be set to occur within 20 days and both the landlord and tenant will have to appear in court. Sometimes a tenant will do this intentionally just to stay in the property longer, even if they do not have a legitimate reason to fight you in court. This is not a smart move to make on behalf of the tenant because the judge will likely find them liable for the landlord’s legal expenses.
If a Pre-judgment Claim of Right of Possession was also served then a Writ of Possession will not be issued until after the 10 days is up. The landlord should still file the Request for Entry of Default on the tenant after 5 days because that will prevent the tenant from responding. Then after 10 days has passed and no unknown occupants have come forward the landlord can then get the Writ of Possession.
To request the Writ of Possession form EJ-130 will need to be filled out. A $15 fee will need to be paid for the issuance of writ. Once the Writ of Possession is issued the landlord can obtain the services of the local sheriff’s department who will post the eviction notice.
Proof of Service
Once you have successfully filed the Unlawful Detainer with the court you will need to notify the tenant that you are bringing an Unlawful Detainer suit against them. Unfortunately it is not as easy as calling them or knocking on the door and saying I’m suing you because you did not pay me. The correct procedure is to have the tenant served with the stamped copies of the Summons and Complaint that you received from the court clerk when you filed your Unlawful Detainer. Once served, the tenant will have five days to respond to the court. If they do not respond then the landlord can request to enter a default judgment.
Serving the tenant is an important step and must be carried out carefully. It is suggested to hire a professional to serve the papers on the tenant. The charge varies depending on the process server, but range from $60-$100. The reason why you should hire a professional is because they have to serve the papers in person on the tenant you wish to evict. If your tenant is avoiding you, which they most likely will be because they owe you rent, then it will be difficult for you to serve them in person. You also do not want to risk a confrontation with your tenant due to the fact that you are evicting them. Lastly, this step is important and if not carried out correctly it could cause further delay in the eviction process. If the court finds anything wrong with your procedure they may not issue the writ of possession and require that you serve the tenants again, giving the tenants 5 more days to live in your property and also another chance to respond.
Pre-judgment Claim of Right of Possession
Another very important step that some people overlook is to serve what is called a Pre-judgment Claim of Right of Possession along with the Summons and Complaint. This form notified any person living in the property who was not specifically named on the Complaint that they are being evicted. This will prevent someone who is living in the property without the knowledge of the landlord from stalling the eviction because they were not named on the Complaint. Once the Writ of Possession has been issued to the landlord and the sheriff goes to the property to remove the tenant, if someone not named on the Complaint comes forward and says they are living in the property and are unaware of the eviction then the sheriff will not be able to remove that person from the property because they were not properly notified. The landlord will then have to go back to the court and file more paperwork to have this newly identified occupant evicted. This is another area where the law favors the tenant and not the landlord. This situation could occur intentionally, for example a crafty tenant who knows the law (there are many of them who know how to work the system). The crafty tenant may have one of their friends move in and then tell the sheriff who comes to evict the tenant that they live there and had no idea of the eviction. This would then stall the eviction and buy the tenant some more time and allow them to live in your property for free just because of the loophole in the legal system. The situation could also occur legitimately, for example the tenant may rent out a room and pocket the sublease money and never inform the subtenant about the eviction. In either case the landlord will need to protect himself from this situation by having the process server also serve a Pre-judgment Claim of Right of Possession on Unknown Occupants. There is one catch to this, which is that the unknown occupant is given 10 days to respond to the court. This often works to the tenant advantage because they get another 5 days of free rent, but it is worth it for the landlord to go through this extra precaution because it can save time in the long run.
This is where the eviction process gets more complicated, but do not get scared. It is unfortunate but California law heavily favors the tenant when it comes to evictions. There are a number of forms that must be filled out and any error on the form could end up costing the landlord days or even weeks of precious time. Again, I highly recommend getting David Brown’s book if you are doing this on your own. The form you need to fill out is UD-100 which is the Unlawful Detainer Complaint and can be found here. The court will charge you around $250 to file the unlawful detainer. I wish I had known all of this when I had to do my first eviction but I am going to share some tips with you. First, do not go to the court until you have all the forms filled out and copies made. For my first eviction I showed up to the court and said I needed to file an unlawful detainer and they handed me a large stack of papers. When I asked questions about how to fill it out they recommended I seek professional help and did not offer many answers. I had already scheduled to go into work late to take care of this and because I had on idea of how to fill the papers out I was going to have to come back another day and go into work late once again. I called around to some lawyers and was given quote ranging from $500-$1200 depending on whether the tenant wanted to fight the eviction in court. There was no way I could that amount of money because the rent was just barely covering the mortgage as it was. I did some online research about how to fill the forms out but was still not getting answers I felt 100% sure about. The reason I was so worried is because if you fill the paperwork out wrong and the tenant decides to fight you in court, you could potentially have to start the entire process all over again just because of a minor error in the paperwork. I did not have the time or money to go through that. I found The California Landlord’s Law Book: Evictions online and heard some very good things about it so I went ahead and purchased it. The book ended up having all the answers I needed and gave me the confidence I could successfully do the eviction on my own without paying an attorney.
In addition to form UD-100 (the Complaint) you will also need to complete CM-010. You must also bring with you a copy of the 3 Day Notice to Pay Rent or Quit, Proof of Service of 3 Day Notice to Pay Rent or Quit, the rental/lease agreement, and any other supporting documentation that will support your case if it does end up in court. You should make multiple copies of these forms and documentation to bring to the court with you. The court will need copies and they can make them for you but they will charge you so it is probably cheaper and quicker to do this beforehand. The court clerk will issue you a Summons and stamped copy of the Complaint that you will need when you serve the tenant.
To start the eviction process you will need to and mail a 3 Day Notice to Pay Rent or Quit. This gives the tenant 3 days to pay what is owed in rent. The landlord cannot include any late charges on the notice, only rent due. Once the 3 Day Notice is served the landlord must wait a full 3 days before filing the unlawful detainer. If the landlord wants to proceed with legal action it is important not to accept any form of partial payment during this time as this will restart the 3 day window for the tenant. Use the chart below to identify when the 3 Day Notice expires and when the landlord can proceed with the unlawful detainer.
|Day Served||Notice Expires at Midnight On|
Be aware that the 3 Day Notice cannot expire on a weekend day. After the 3 days are up the landlord can proceed with the unlawful detainer. Also remember that you will need to fill out a Proof of Service of 3 Day Notice to Pay Rent or Quit.
You may already be worried because you have no idea where to get a 3 Day Notice form or how to properly fill one out or what a Proof of Service form is. No need to worry because the California Landlord’s Law Book – Evictions has all the forms and excellent instructions on how to fill one out.
After the 3 Day Notice has been posted and the tenant does not pay, you can process and file an Unlawful Detainer suit against the tenant.