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Tuesday 21 November 2017
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Ask the Expert: Eviction, What You Need To Know

Arguably the most sensitive topic in landlord and tenant law involves eviction because no one wants to be removed from their home. On Dec. 14, 2014, The Orange County Register reported that 6,600 Orange County renters were evicted in 2014 or one eviction for every 63 tenant households. Among the immediate parties involved the process is often contentious, yet California courts apply a systematic approach to eviction cases. A landlord must go to court to evict a tenant and if the court rules in favor of the landlord, a sheriff performs the eviction, not the landlord.

A California landlord can evict a tenant with or without cause. If the landlord has cause to end a lease, the landlord can terminate the agreement early and evict a tenant for a variety of reasons such as, failure to pay rent, significant violation of the rental agreement, or committing an illegal act. Before terminating the agreement, a landlord must give a tenant written notice. The reason for the termination will determine the type of notice needed. In most instances, three day notice is all that is legally required to be given to a tenant.

To end a rental agreement without cause turns on whether the tenant is in a fixed term or periodic lease (i.e. month-to-month). Under a fixed term lease, the landlord cannot end the agreement without cause until term maturity. The landlord is not required to give notice to the tenant to move out at the end of the term unless it is spelled out in the lease. If the agreement is periodic and the tenant has lived in a dwelling for less than a year then a 30-day notice is required to be given by the landlord. If the tenant has lived in the dwelling for more than a year and the lease is periodic, then a 60-day notice is required to be given to the occupant.

Another way a landlord can evict a tenant is through “constructive eviction.” Constructive eviction occurs when the living conditions of the dwelling become unlivable and if the landlord fails to cure the conditions then tenant has the option of moving out.

Implied in every lease in California are two promises or “covenants” as they are called in legal circles. These covenants include: (1) quiet enjoyment and; (2) warranty of habitability.  The first covenant provides surety to the tenant that the landlord will not enter into the dwelling without permission and the tenant has right to enjoy the property peacefully. The second covenant requires the unit to conform to all health and safety regulations. The landlord is obligated to maintain the dwelling and to fix problems in a timely manner if the problem substantially impacts the use of the property.

In all cases, a tenant must inform the landlord of the unfavorable conditions in writing and allow a reasonable time to cure. The question is what is a reasonable time? Generally, if the problem has not been addressed after 30-days’ notice, the tenant has a strong argument to vacate. For tenants, it is wise to take pictures of the problem as an additional means of protection should the dispute find its way into court. In summary, if a landlord breached either the covenant of habitability or quiet enjoyment, the tenant may vacate the premises without incurring additional financial obligations under the concept of “constructive eviction.”

If you find yourself facing eviction – actual or constructive, consult with an attorney that’s well versed in landlord and tenant law. Keep records of all communication between you and the landlord and support your communication with photographs.

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By David Pruitt

The author is a Laguna Beach resident and realtor at Zenith Real Estate Services Inc.




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