Are you a rental owner? If you ever end up in the unfortunate position of having to evict someone, you will see that time is literally money. During the eviction process, you will be unable to rent your property to a great tenant who would pay the rent on time.
I want to share a time-saving tip—the Prejudgment Claim of Right of Possession— that will help landlords and attorneys ensure a speedy eviction. This form was recently updated by the Judicial Council of California on June 15, 2015. Many people still use the older version of this form, which was created in 1991. The key difference in the newer form is that it informs occupants of their legal rights of being allowed to file the Prejudgment Claim of Right of Possession at anytime before a judgment is entered if they are being evicted in a post-foreclosure proceeding.
Many of you may not know why you should care about the Prejudgment Claim of Right of Possession form. Many landlords who have rented out their properties are unaware that their tenants have invited other adults to live with them at the property. In an eviction process, the landlord files a summons and complaint against the known named tenant(s) but does not include the unknown occupants. The landlord gets an eviction judgment against the named tenants, but what about the unnamed occupants that live at the property? The landlord who doesn’t use a Prejudgment Claim of Right of Possession could face a major delay in removing all occupants from the property. Unknown occupants have a right to participate in the eviction proceedings under California law.
Let’s say a landlord fails to use the Prejudgment Claim of Right of Possession procedure prescribed under California Code of Civil Procedure § 415.46 at the time the sheriff gives notice of the move-out date to the known named tenants. In that case, the sheriff is required by law to notify occupants not appearing on the judgment that they have the option to file a Claim of Right of Possession to the property with the sheriff. Should an occupant file a Claim of Right of Possession, the sheriff will cancel the lockout date, and a court hearing will be scheduled to determine if the unknown occupant(s) has a right of possession at the property address. Any occupant who files a Claim of Possession to the property must declare under penalty of perjury that he or she was living on the property before the unlawful detainer was filed. But some tenants may get some “occupants,” whoever they may be and whether or not they were staying at the property prior to the unlawful detainer, to file a claim just to buy the tenants extra time and to delay the eviction.
If you utilize the Prejudgment Claim of Right of Possession procedure and have a registered process server or county sheriff serve it along with the summons and complaint to the named tenants, you can prevent unknown occupants from stalling an eviction at the last minute. Unknown occupants are forced to file their claims with the court within 10 days of being served the summons and complaint. But if you file a Prejudgment Claim of Right of Possession with the summons and complaint, the court will enter a judgment for possession on all occupants. Then the sheriff will remove all individuals found on property at the time of the move-out.
So why should you use the updated Prejudgment Claim of Right of Possession form when serving your summons and complaint? Because you don’t want the court to allow an unknown occupant to join in on the eviction process and challenge the Prejudgment Claim Process because you used the older form. Even if you got a default judgment against the known tenants, you could be facing a motion to vacate the default judgment in order to allow more time for an unknown occupant to file a proper Prejudgment Claim of Right of Possession and become a participant in your eviction proceeding.
The bottom line is that motions in eviction cases cost you time and money. So you should use the updated form!
To download the latest Prejudgment Claim of Right of Possession form and for other common unlawful detainer forms go to http://www.courts.ca.gov/forms.htm?filter=UD
