Myth #1. Unlawful detainers are informal hearings just like small claims cases I see on TV or at my local courthouse.
This is far from the truth. Small claims court does have procedures designed to let everyday people resolve disputes quickly without the hassle of costly litigation. But unlawful detainer cases in California are like any other court case in Superior Court; the major exception is the timeframes for these proceedings. Unlawful detainer cases are given preference on the trial court’s calendar and generally must be heard within 20 days of a plaintiff’s request for trial. Due to the expedited timeframes, litigants can find themselves in major trouble if they miss a critical deadline.
Many people represent themselves in these types of cases. Some judges cut a self-represented litigant some slack, but self-represented persons are held to the same standard as attorneys and must comply with all civil procedure and evidentiary rules applicable to these cases.
Myth #2. The Three-Day Notice to Pay or Quit is not the most important piece of paper in nonpayment of rent cases.
Many people I talk to tend to discount the three-day termination notice and its purpose in the eviction context. This perception is probably because the three-day notice is technically not a court document. However, under current unlawful detainer law, the three-day notice in a nonpayment of rent case is by far the most important document. If the notice is not prepared or given to a tenant as stated under the Code of Civil Procedure, the landlord will not have grounds to file an unlawful detainer complaint in court. Taking a simple analogy, a summons and complaint and three-day notice are similar to a car and gas. The car cannot run without gas; the summons and complaint must have a properly drafted and served three-day notice to initiate an unlawful detainer action.
Myth #3. I got an unlawful detainer judgment against my tenant for past due rent. I don’t have to provide an accounting of my tenant’s security deposit. They owe me money!
Unless you want to end up returning your tenant’s entire deposit 21 days after their departure, you are obligated to provide an accounting of how you used the tenant’s security deposit. There is an exception to this rule if you get a written waiver of the accounting from your tenant.
Proper accounting requires a landlord to state how much a tenant is being charged for repairs or if the deposit is being used for past due rent. Landlords doing their own repairs must provide invoices for the cost of items. They also must document their hourly rate and hours spent on a repair project if they are deducting any part of the security deposit for labor. If a contractor is hired to do repairs, a landlord must provide an invoice that shows the work and materials furnished. If repairs will take longer than 21 days to complete, a landlord is allowed to provide a written good faith estimate within the 21-day time period and then submit a final invoice when the repairs are completed.
Myth #4. In the process of the unlawful detainer action, my tenants damaged my rental unit. I can get a money judgment for the damages caused by the tenant in the unlawful detainer case, right?
Unfortunately, in California, judges are only authorized to issue money judgments under limited circumstances in an unlawful detainer action. Most of the time, money judgments can only be issued for past due rent, attorney’s fees (if your lease has a provision for them), and costs of the suit such as filing and process server fees. If your tenant has caused damage to your rental unit, you can use the security deposit to cover the damage. For any amount of damage you cannot cover under a security deposit, you will need to amend the unlawful detainer complaint and sue the tenant for damages to the unit. In the alternative, you can dismiss the unlawful detainer complaint and sue the tenant in a small claims court action. At this point, the landlord should evaluate whether the tenant is “collectible.” If the tenant doesn’t have anything, landlords probably should not waste any more money pursuing a broke tenant since there is little chance of collecting anything. If you do wish to pursue a tenant and if the damages are under $10,000, I recommend using small claims court. Generally, you will get a trial date faster and at a fraction of the cost of keeping your case in Superior Court. If you keep your case in Superior Court, you have to abide by all the formal procedures of civil procedure, which means an attorney will have to manage the case, thus costing you more money.
Myth #5. I am a property owner, and my tenant is not paying rent or holding up his or her end of the bargain in the lease agreement. I can just waltz down over to my property and do the eviction myself. I can forget the courts and the lawyers because I want my property back today!
Disputes between landlords and tenants happen on a daily basis and can be very frustrating. Unfortunately, landlords are prohibited from performing “self-help” evictions of tenants. In California, the only entity authorized to perform a physical eviction of a tenant is the county sheriff, and only if the sheriff is acting on a lawful court order, judgment, or decree.
Landlords who forcefully remove a tenant not only could face criminal penalties but also could face a civil lawsuit for wrongful eviction, forceful entry, and forceful detainer. A forceful detainer is the opposite of an unlawful detainer in the wrongful eviction context. A tenant can file this action, win a judgment for possession of the property, and have the sheriff remove the landlord and restore possession back to the forcefully removed tenant.
