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Legal • June 1, 2004

Landlord/Tenant Law 101: Evictions

Landlord/Tenant Law 101: Evictions

During the past few months we have summarized landlord/tenant law in Berkeley and in California as it relates to (a) lease agreements, (b) security deposits, and (c) permissible rents. We now turn to eviction procedures, an inevitability that nearly every landlord must face.

As is the case with regard to permissible rents, evictions in Berkeley are governed by both California and local law. State law until recently was deceptively simple: at the end of the agreed lease period, the landlord could reoccupy his/her property. During the term of the lease, the landlord had the same right in the event of an uncured breach of the lease terms (failure to pay rent, damage to the property, unlawful sublets, and so on). Generally a three day notice set the tenant’s cure period running; any failure fully to cure (or leave the premises) within the three days would result in an accelerated unlawful detainer action in the appropriate court (Superior, Municipal, or Small Claims).

During the past three decades, the legislature, together with Berkeley’s Rent Board, have made things more complex. The most significant change has been Berkeley’s requirement for “just cause” before any eviction, even when the eviction happens after the expiration of the lease term. When coupled with Berkeley’s rules against any meaningful rent increases so long as an “original tenant” remains in possession, the result in many cases has been near-perpetual tenancies at guaranteed, low rents.  The tenant may stay forever so long as he/she does not refuse to enter into successor leases (on the same terms as the first lease), and is otherwise in compliance with lease terms.  Since not even a sale of the property, or the death of the owner, is a “just cause”  to terminate the tenancy, the market value of the property will without question be depressed wherever there is a lifetime tenant in possession.

There are two exceptions to this harsh, Berkeley rule:

  First, is the owner move-in where the owner or an immediate family member wishes to occupy the unit.  Even this right (which is guaranteed by state law) is qualified in Berkeley where the tenant is disabled, or over 62 years of age, or where the owner has other units on the market.  This is the result of “Measure Y”, the constitutionality of which is still in question.

  Second, is the right of the owner under the Ellis Act (Calif. Gov’t Code. Sections 7060 et seq.) to withdraw the property entirely from the rental market. This right, which only comes into play upon expiration of the lease term, is also qualified by requirements to give extended advance notice (up to a full year depending on age, disability, and length of the prior tenancy), and to pay a substantial sum ($4500) to low income tenants.

Given that the simple expiration of the lease does not give an owner the right to repossess his/her property, what are the “just causes” for eviction in Berkeley? They are set out in chapter 13 of the Rent Board’s regulations, and include:

  • A failure to pay rent or to maintain a security deposit.
  • Damage to the property beyond ordinary wear and tear.
  • A refusal to sign a new lease after expiration of the old one. 
  • Continued violation of non-monetary terms of the lease after written notice to cease and desist. Disturbing the peace and quiet of other tenants or neighbors.
  • “Unlawful activity on the premises”.

A few comments:

While it is relatively easy to prove a failure to pay money, it is much harder to persuade a judge that a tenant has disturbed the peace and quiet of others. When you get complaints about a tenant you should insist that they be in writing. If the police have been called to deal with a loud party or with domestic violence, you should verify that fact with the authorities. Photographs of cluttered hallways, accumulated garbage and smashed fixtures are always important.

Where you suspect “unlawful activity” the stakes may be higher. Indeed, Jim Smith in this issue argues that most questions about suspected drug dealing, spousal abuse, petty theft and the like should be referred to the police or other authorities who have an independent power to get the offenders off your property.

The need in Berkeley to prove “just cause” for any eviction points up once again the importance of a well-drawn lease. Rules about pets, unit cleanliness, maintenance of common areas, building curfews, number of roommates and the like should be very clearly stated and understood by the tenant from the outset.

One saving grace is that disputes are resolved by a real judge and not by small claims courts or by a knee-jerk, pro-tenant Rent Board. The procedure is still that set by state law, as modified by Berkeley.

First, there is a three day notice, which under state law must state precisely the nature of the default and the money amount due (if any).

Second, there is then an unlawful detainer action if the tenant has failed to cure the default within the three days, and remains in possession. The parties have a right to an accelerated trial by judge or jury, following which (if the tenant has lost his/her case and remains in possession) a writ of possession is issued.

There are (as always) pitfalls: a three day notice which overstates the amount due has no effect; the same is true of a notice which is not properly served, or fails to state “every element” of the “good cause” required by local law for eviction. Proper service may be in person on the tenant, or by “substituted service” on a responsible person at the premises, or by “posting” the notice on the premises and mailing it to the tenant’s last known address. See Calif. Code of Civil Procedure Sections 1160 et seq. The procedures must be followed exactly. California law is not kind to landlords who engage in “self-help” (as by changing locks, or removing personal property without a court order).  Indeed, the combination of Berkeley and California tenant-protection rules is so complex that BPOA advises most housing providers against going forward until they have consulted with professionals in the field. 

What if the tenant leaves after the complaint is filed, but before the writ of possession is issued?  At this point you may convert your action to one for damages. The accelerated unlawful detainer procedure will not result in an award for damages except as they arise during the brief period when the tenant continued to occupy after the three-day notice. If you wish an enforceable judgment for property damages, or for back rent which exceeds the security deposit, you need to go through the more time-consuming processes reserved for ordinary court complaints. Here, however the small claims court is open to you where the amount of claimed damages is $5000 or less.

What if the tenant departs, but leaves personal property behind? You may not chuck it in the street or call Goodwill without giving written notice to the tenant; if the tenant claims the property within fifteen days and pays your storage costs, he/she may recover the property.

What about your attorneys’ fees? Most leases have a provision allowing attorneys’ fees in the event of legal action against the tenant. However, California law makes this provision bilateral, meaning that the tenant may recover attorneys’ fees against the landlord if the landlord fails to prove his/her case. Given the number of pitfalls that Berkeley law puts in the path of landlords, and that many tenants are judgment-proof, simply disappearing as trial approaches, the more sensible course may be to leave the clause out of the lease entirely.

What if the tenant offers a partial payment during the three day period and asks for a few extra days on the rest? You should accept the payment only if the tenant signs a document affirming that you are not waiving your right to the rest of the money within a stated period, and allowing you to proceed directly to an unlawful detainer proceeding if the remaining amount is not paid by a stated date.

Readers should be aware that the above is not to be considered legal advice for use in particular cases;  it is designed only to remind BPOA members of relevant issue and in many cases has been simplified because of space limitations. .  Wherever there is doubt, readers should consult with third party experts.


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