The acute housing shortage has given rise to more defenses to unlawful detainer actions, according to Todd Rothbard, a Santa Clara attorney who specializes in unlawful detainers. More and more defenses to unlawful detainer actions keep rising as a result of statutes created or by court decisions, wherein if it is found that the notice is given for an improper reason, the landlord may be denied the right to evict.
Unlawful detainer refers to a tenant who is in possession of an apartment or leased property and refuses to leave the premises upon the expiration or termination of the lease. Rothbard recently presented members of the Silicon Valley Association of Realtors an overview of the eviction process and do's and don'ts for landlords who find themselves in such a situation.
In Santa Clara County, Rothbard said the eviction process usually takes two to three weeks to complete for uncontested cases. The process can last five to six weeks for contested cases.
Rothbard said 90 percent of the time tenants are evicted for non-payment of rent. In such a case, a landlord may serve a three-day notice to pay rent or quit any time after the rent is due. The notice must be properly filled out (use the correct form) and properly served to the tenant, or it will be deemed invalid. Names of all occupants of the property ages 18 and over must be listed in the form and only the rent amount should be included - not late payment charges, damage amount to the property, etc., or the notice will be deemed invalid.
Rothbard stressed the importance of proper service of the notice, since many eviction trials are determined solely on this issue. If the notice is deemed invalid, the landlord not only ends up with unpaid rent, but also loses the case and has to pay the tenant's attorney fees and costs, as well as his own.
A landlord can serve month-to-month tenants a 30-day notice to terminate tenancy. Tenants who have lived in the property for more than one year must be served a 60-day notice. Tenants with a subsidy tenancy lease, like a Section 8, must be served a 90-day notice.
In the past, a landlord could serve a 30-day notice to terminate tenancy for any or no reason at all. Landlords did not need to give a reason to terminate tenancy. Since rents skyrocketed, many cities have tightened their tenant protection ordinances. According to some statutes, if it is found that the notice is given for an improper reason, a landlord may be denied the right to evict a tenant. Cities like Mountain View require a landlord to have just cause in order to evict a tenant.
Rothbard said there are four non-curable reasons to evict a tenant: if the tenant commits waste, permanently damaging the property and reducing its market value; if the tenant commits a nuisance, disturbing other tenants and neighbors; if the tenant is subletting the property, which is not allowed in the lease; and if the tenant uses the property for unlawful purposes.
"Just cause isn't such a happy concept," remarked Rothbard. He explained just cause requires the landlord to prove cause, which would mean asking witnesses to testify. In some cases, other tenants refuse to testify for fear of retaliation from the tenant being evicted.
"Rent control never works. High rents are only a symptom of the problem, which is the lack of housing," said Rothbard. "Rent control only exacerbates the problem because it keeps one protected class, while everyone else competes for the non-protected units. Rent control just increases evictions."
The Silicon Valley Association of REALTORS® (SILVAR) is a professional trade organization representing over 4,000 REALTORS® and Affiliate members engaged in the real estate business on the Peninsula and in the South Bay. SILVAR promotes the highest ethical standards of real estate practice, serves as an advocate for homeownership and homeowners, and represents the interests of property owners in Silicon Valley.
The term "REALTOR®" is a registered collective membership mark which identifies a real estate professional who is a member of the National Association of REALTORS® and who subscribes to its strict Code of Ethics.
Variations of this article have appeared in local area newspapers.
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