What are the Tenant’s rights?
If you are a Tenant served with a NoticeIn general, once a landlord gives you notice, you can:
- Do what the notice asks within the time allowed,
- Not do what the notice asks, or
- Try to reach an agreement with the landlord.
If you do not do what the notice asks, the landlord can file an unlawful detainer case in court to evict you and collect back rent. If you do what the notice requires (like pay the back rent in full), then the landlord cannot file an unlawful detainer case. If he or she does anyway, you can defend yourself against it. If the landlord does not wait until the notice period runs out to file the eviction case in court, you can ask the court to dismiss the case.To count the days in the notice period:
- The first day is the day after the notice is served.
- Then count every day on the calendar, including weekends. For a 3-Day Notice to Quit or Pay Rent or a 3-Day Notice to Comply do NOT count weekends or court holidays.
- If the last day of the notice period falls on a holiday or weekend, then the notice period ends the next work day.
- If the landlord does not serve the notice in person and has to mail a second copy, the notice period starts running the day after he or she mails the notice.
If you are a Tenant served with a Summons and Complaint
After you are served with the Summons and Complaint, you have to file a response to the lawsuit with the court to defend yourself in the case. The response has to be in the proper legal form. It is not enough to call or write a letter to the landlord. It is also not enough to write a letter to the court. You have to file your response within the deadline.
The Answer is the most common type of response. With the Answer, you can present your side of the story and dispute any facts the Plaintiff asserts in the complaint. Each person named in the eviction lawsuit has the right to file an Answer. If no responsive pleading is filed, then the landlord will win the case automatically. There are pros & cons to filing an Answer and only you can decide if you need to do it. Legal assistance programs, like Legal Aid, Inland Counties Legal Services, and Inland Empire Latino Lawyer’s Association, or the Court’s Resource Centers, can talk to you about your options.
Also, a tenant always can try to contact the landlord (or the landlord’s attorney) to see if a deal can be reached about leaving the property.To figure out how much time you have to respond:
- If you were served in person, you have 5 days to respond. Weekends and Court holidays are NOT counted as part of the 5 days.
- If you were served by substituted service or "post and mail," service is effective on the 10th day after the date of mailing and then you have 5 days to file a response. Weekends and Court holidays are NOT counted as part of the 5 days. The date of mailing is the postmark date.
People who are not named as tenants in the rental agreement or lease sometimes move into a rental unit before the landlord files the landlord/tenant (eviction) lawsuit. The landlord may not know that these people (called "unknown occupants") are living in the rental unit, and therefore cannot name them as defendants in the summons and complaint.
LandlordsIf there are unknown occupants in the property that you did not name in your eviction complaint, they may be able to fight the eviction, even if you initially get your eviction judgment. If you did not include them in the Complaint, you have two choices. The two choices are:
- Do nothing: Unless a Prejudgment Claim of Right to Possession was served on the unknown occupant, any unknown occupant not named in the judgment for possession who occupied the premises on the date of the filing of the action may object to enforcement of the judgment by filing a Claim of Right to Possession. OR:
- If there are unknown occupants, the Sheriff or Registered Process Server may serve the unknown occupants a Prejudgment Claim of Right to Possession (Form CP 10.5) as well as copies of the Summons and Complaint.
- The Prejudgment Claim of Right to Possession gives the unknown occupants of the property the chance to file a claim with the court within 10 days. The claimant will then be added as a defendant, and must serve and file a responsive pleading (such as an answer) within 5 days after filing the Prejudgment Claim of Right to Possession. For calculating the 5 days, count weekend days but do not count Court holidays. If the last day falls on a weekend, then it must be filed on the next day the Court is open.
- If the unknown occupant does not file anything, then the sheriff will evict them if you win.
Note: If you are evicting tenants after acquiring the property in a foreclosure, this 10 day limit does NOT apply and the tenants can file the Prejudgment Claim at any time before the judgment is final, or challenge the eviction after the judgment.
Unknown OccupantsIf you are not named in the lawsuit and are served with a Prejudgment Claim of Right to Possession, you have to decide whether to file the Prejudgment Claim of Right to Possession to become officially involved in the case.
- If you decide to file a Prejudgment Claim of Right to Possession, you must file the claim within 10 days of being served.
- Filing a claim is considered a general appearance, requiring a filing fee.
- Once you file the claim, you will be added as a defendant. You must serve and file an answer within 5 days after filing the Prejudgment Claim of Right to Possession. For calculating the 5 days, count weekend days but do not count Court holidays. If the last day falls on a weekend, then it must be filed on the next day the Court is open.
- As a party to the case, you may be named as part of the judgment which may affect your credit rating and/or allow the landlord to collect the judgment from your assets.
- If you do not file a Prejudgment Claim of Right of Possession, then your name does not become associated with the eviction but you would have to move if the Sheriff came with the lockout order.
How to Request a Court Date for an EvictionYou can only request a court date for an eviction hearing after you have completed the first 3 steps:
- Step 1: Give the tenant legal notice that you want to evict like the 3 Day Notice to Pay or Quit
- Step 2: File your eviction lawsuit with the court & serve tenant
- Step 3: The tenant files an Answer with the court
Once the Tenant files an Answer, you can request that the clerk set up a court date. After filling out the form above, called the “Form to Request an Eviction Trial Date” (UD-150), you must have it served by mail on the Tenant, then file it at your courthouse. The clerk will then mail you a court date. The trial will take place within 20 days.
If the tenant does not agree with the information in your Request to Set Case for Trial, he or she may also file and serve you with a Counter-Request.
Your eviction trial date is NOT the Status Conference date that was already mailed to you from the clerk’s office. The Status Conference date is just a check up to make sure you served the tenant and are moving the case forward. So if you are interested in getting to see the judge for the eviction, you will need to fill out the Request to Set Case for Trial form.
Note: Both you and the tenant have a right to a jury trial. See the Self-Help Resource Center for additional information. If the Tenant has not filed an Answer and it has been more than 5 days after the Tenant was served, then you can complete a Default Judgment.
Landlord Tenant Judgment Basics
In order to legally and successfully evict a tenant or tenants it is important for the landlord to follow some important and necessary steps. A landlord can file a default judgment to finish their case when a tenant(s) has been properly served with an unlawful detainer summons and complaint, and the tenant(s) have not timely filed a response with the court.
Usually a tenant is required to file the Answer within 5 calendar days from the date that they received the summons and complaint – don’t count court holidays. If the tenant(s) were not personally served then they might have additional time to file a response. If you served “unknown occupants” through a registered process server, then you must wait 15 days to file the default paperwork.
A tenant may file an Answer until the Landlord files the default paperwork. Verify with the court clerk that your tenant did not file an Answer before proceeding with the default judgment forms. The tenant is required to mail you a copy before the Answer gets filed by the court. Sometimes you get the Answer a few days later in the mail.
If a tenant files an Answer, then your next step is to file the Request to Set Case for Trial (UD-150). Note: if you listed more than one person as a defendant on your case, then treat the actions of each person separately.Example:
- Tenant #1 filed an Answer. File the Request to Set Case for Trial as to Tenant #1.
- Tenant #2 did nothing. File the Request for Entry of Default as to Tenant #2.
If you are ready for a default judgmentThere are two types of paperwork for default judgments in unlawful detainer cases.
- Clerk’s Default Judgment: If you want to get possession of your property back the fastest, start with the Clerk’s Default Judgment. This paperwork is only processed by the clerk’s office. Once the clerk’s judgment for possession has been processed the landlord can obtain a writ of execution. The writ of execution is a document that the landlord will need to give a Sheriff in order for the Sheriff to evict the tenant(s).
- Court’s Default Judgment: After you get the property back, you would follow it up with a Court’s Default Judgment to get the monetary damages (like back rent) that were originally requested in the complaint. This paperwork starts at the clerk’s office and then needs to be routed to the Judge for review and signature.
The alternative would be to submit one Court’s Default Judgment asking for both possession and monetary damages; return of the signed judgment may take longer to get back as compared to the Clerk’s Default Judgment for possession. The processing time varies by each court location, depending upon the backlog. It may take a few days for even the clerk’s judgment to be processed.
It is the landlord’s decision which type of default judgment they would like to file.The following documents and information will be necessary to fill out your forms completely and accurately:
- A copy of the complaint
- Date on which you filed the complaint
- Date that notice expired (3-day notice, 30-day notice, etc.)
- Daily Rental Rate (Daily damages)
- Original or Copy of rental agreement (if any)
- Proof of Service of Summons must be filed with the clerk’s office – can be filed at the time of default.
Judgment after TrialIf the landlord wins: If the judge or jury decides you have the right to evict the tenant, the judge will give you a Judgment of Possession. The judge or jury may also order the tenant to pay back rent, damages, and costs, like filing fees and attorney fees (if this is in the rental agreement). You may also be able to get money for the rent that you could have gotten for the rental unit while the tenant was there illegally. If the court finds the tenant only stayed in the unit to be mean, spiteful, or to make you suffer, the court may order the tenant to pay a penalty of up to $600.
- You must complete a Judgment of Possession (Form UD-110) and bring it with you to the court hearing, the court will not provide this form. This form gives you possession of the property.
- Then, you must fill out and have the court clerk issue a Writ of Execution (Form EJ-130) and take the writ to the sheriff. This lets the sheriff remove and lock the tenant out of the property.
- The sheriff will serve the tenant with a notice to vacate the property. This gives the tenant 5 days to move. If the tenant does not move, the sheriff will remove the tenant from the rental unit and lock him or her out.
If the tenant wins: The judge may decide the tenant has the legal right to stay in the property. If so, the judge may order you to pay the tenant's costs, like filing fees and attorney fees (if this is in the rental agreement). The judge may also decide how much rent the tenant has to pay.
The side that loses can appeal or can file a motion to set aside (cancel) the judge’s order. There are strict deadlines to do this, and the side appealing needs a legally valid reason to do it. If a tenant appeals or tries to cancel the judge’s order, the eviction is not stopped. The only way for a tenant to stop or delay the eviction is to ask for a stay of execution - You will need to speak to an Attorney, the Self-Help Resource Center cannot assist you with this.
Even if a tenant does not appeal, he or she may want more time to move out. If the landlord will not agree to it, the tenant will have to file a request for a stay of eviction (“stay”).
If the tenant moves out before the case is overIf you (the landlord) have already filed the unlawful detainer papers at court, and the tenant moves out before the trial you have 2 choices:
- Dismiss the case, or
- Ask the court to convert the case to a regular civil case for damages to collect back rent in the amount requested in the unlawful detainer complaint.
To request a dismissal of the case, file a Request for Dismissal (Form CIV-110). If you do not dismiss the case or ask that it be changed to a regular civil case for damages, the tenant may go the trial and ask the court to dismiss the case because he or she has already moved out. if the tenant wins, he or she may get an award for having to come to court for the trial when the case should have been converted to a regular civil case or dismissed.