A step-by-step procedure to follow for

Unlawful Detainer proceedings

 

These procedures are for single family homes and apartments only that are not Section 8, Federal or State law subsidized income properties or Mobile Homes.  The procedure is started by giving notice to the tenants.  There are several different types of notices, as discussed below:

 

1.         Three-Day Notice to Pay or Quit. 

 

This notice is given where the tenants owe past-due rent.  This may be given any time after the actual date the rent is due, i.e., if the rent is due on the first of the month,  this notice may be given at the earliest on the second day of the month.  All tenants must be listed by name in this notice.  After listing the names of the tenants, always include the words “And All Tenants In Possession”.  The amount of rent due must be listed.  It is important that the rent be itemized by month, and that the amounts due and owing for each month are listed separately.  DO NOT under any circumstances place a dollar amount without listing the time periods for which it is due, i.e., December 1 to December 31, 2011.  DO NOT list late charges on a Three Day Notice To Pay Rent or Quit; late charges are to be listed on a Three Day Notice to Perform Covenant or Quit only (see below).  A Three Day Notice to Pay Rent or Quit may be signed by the owner or any agent of the owner, including the property manager and served by the owner or agent.  After the serve is completed a proof of service needs to be filled out by the person who served the notice and attached to the original notice.  Note ~ do not give your originals away, copies are always served.

 

2.         Three Day Notice To Perform Covenant or Quit. 

 

This notice is given where the tenant has violated some other provisions of the signed Rental Agreement whether or not they are in default in the payment of the rent.  The most common reasons would be failure to pay late charges owed, moving extra tenants into the premises, disturbing other tenants by holding late night loud parties, or moving pets into the premises.  In this type of notice, specify that provision of the Rental Agreement which is being violated, i.e., paragraph 6 states ... and you are in violation because.... also state the way the violations can be corrected.  This notice may be signed by the owner or any agent of the owner, including property the manager and served by the owner or agent.  After the serve is completed a proof of service needs to be filled out by the person who served the notice and attached to the original notice.  Note ~ do not give your originals away, copies are always served.

 

 

3.         Three Day Notice to Quit. 

 

This notice is given where the tenant is committing “waste” or “nuisance” on the property.  This means physically changing the premises in any manner, being a nuisance on the property i.e. constant loud parties, any form of violence such as threatening someone with a weapon, or shooting a gun, or doing physical damage to the premises.  Do not use this notice unless you have someone with personal knowledge available to testify at trial. This notice may be signed by the owner or any agent of the owner, including the property manager and served by the owner or agent.  After the serve is completed a proof of service needs to be filled out by the person who served the notice and attached to the original notice.  Note ~ do not give your originals away, copies are always served.

 

4.         Thirty or Sixty Day Notice to Quit. 

 

This is the primary way to end a month-to-month tenancy.  No specific reason needs to be specified except you must make it clear that the tenancy is being terminated within thirty/sixty days.  If the tenant has been in possession of the premises 11 months or less, serve a 30 day notice.  If the tenant has been in possession 1 year or more, serve a 60 day notice.  As of 2012 all thirty/sixty day notices must have this verbiage on the notice to be in compliance with the law: 

 

"State law permits former tenants to reclaim abandoned personal property left at the former address of the tenant, subject to certain conditions.  You may or may not be able to reclaim property without incurring additional costs, depending on the cost of storing the property and the length of time before it is reclaimed.  In general, these costs will be lower the sooner you contact your former landlord after being notified that property belonging to you was left behind after you moved out."

 

This notice may be signed by the owner or any agent of the owner, including the property manager and served by the owner or agent.  After the serve is completed a proof of service needs to be filled out by the person who served the notice and attached to the original notice.  Note ~ do not give your originals away, copies are always served.

 

5.         Proof of Service. 

 

The above-listed notices may be served in any one of the following ways:

 

A. Personally handing the notice to the tenant(s).

           

B. Giving the notice to someone residing in the apartment or visiting the apartment over 18 years of age, and sending a copy of the notice by first class mail to each adult tenant at the address listed.

           

C. By posting a copy of the notice on the door of the premises and mailing a copy to each adult tenant at the address listed by first class mail.

           

D. Only the Thirty or Sixty Day Notice to Quit may be served by certified, return-receipt mail.  This presents a problem, however, should the tenant refuse to sign for the letter, he then has not been served.

 

Generally, the apartment manager should fill out and serve the proper notice.  However, any legal adult can serve a notices, sheriff officer or for a fee a process serving company.

 

6.         Summons and Complaint. 

When the time period runs in the notice(s) listed above, the next step is to file the Summons and Complaint with the Court.  A copy of the Rental Agreement and the notice listed above stating the manner in which the notice was served (proof of service), as well as any changes made to that Rental Agreement during the tenancy, i.e., rent increases, tenant name changes are required.  Once the paperwork is endorsed by the court and returned, it must be served on the defendants.  Any legal adult can serve a notices, sheriff officer or for a fee a process serving company.  

 

It is beneficial that as much information possible be provided by either the owner or manager by sending over a physical description and or the rental application of the tenant(s) so that the Summons and Complaint can be served on the proper person(s) (defendants) by the process server.   From the time the issued Summons and Complaint has been served on the tenant, generally, the tenant has five days in which to respond by filing an answer with the Court.  If the tenant is substitute served, the tenant has fifteen days in which to file an answer. 

 

7a.         Default. 

If no answer is filed within the five or fifteen day period, depending on the how the serve was done, a default is entered.  At that time a Clerk’s Judgment for restitution of the premises is issued and a writ of possession is issued by the Court.  The writ with Sheriff Instructions is then taken to the Sheriff's civil division.  The Deputy Sheriff posts the writ and the tenants have five days to vacate.  On the sixth day the Deputy Sheriff will meet the owner or property manager at the premises to take back possession if the owner/manager does not have keys to the unit then they must make arrangements to have someone available to change the locks at that time i.e. locksmith. 

 

Once you have possession back, a declaration is prepared and a money judgment is obtained for the past due rent through the date of possession.  Depending on the rental agreement, you may recover attorney’s fees and court costs in the judgment. No other damages may be recovered.

 

You will then have 21 days to send a letter to the tenant telling them how their deposit was spent to get the unit ready for re-rent.  The letter must contain copies of all receipts and a detailed list of all work done.  If the forwarding address was not obtained at the time the tenant moved out, you must then send the letter to the last known address.  If it comes back to you, keep it until further notice.  It is the tenants’ responsibility to forward their address.

 

7b.         Trial. 

If an answer is filed within the five day period, or fifteen as the case may be for a substitute service, it is immediately set for trial.  A trial date is usually scheduled within two weeks (11 to 21 days from the day the court received the request).  At the trial, the property manager and/or owner of the premises must be present with the attorney.  The trial is usually very short; no longer than one hour.  After the Court awards judgment in our favor a writ of possession is issued by the Court.  The writ with Sheriff Instructions is then taken to the Sheriff's civil division.  The Deputy Sheriff posts the writ and the tenants have five days to vacate.  On the sixth day the Deputy Sheriff will meet the owner or property manager at the premises to take back possession if the owner/manager does not have keys to the unit then they must make arrangements to have someone available to change the locks at that time i.e. locksmith. 

 

At Trial the court automatically issues a money judgment for the past due rent through the date of the trial.  Depending on the rental agreement, you may recover attorney’s fees and court costs in the judgment. No other damages may be recovered.

 

You will then have 21 days to send a letter to the tenant telling them how their deposit was spent to get the unit ready for re-rent.  The letter must contain copies of all receipts and a detailed list of all work done.  If the forwarding address was not obtained at the time the tenant moved out, you must then send the letter to the last known address.  If it comes back to you, keep until it further notice.  It is the tenants’ responsibility to forward their address.

 

 

 

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There may be other costs and delays which in turn will not only drive up the costs but delay the eviction time frame as well.  Court's and Sheriff Departments vary widely in their time frames please contact my office if you have any questions at all regarding the procedures which I have outlined above for you.