Evicting a longtime tenant and replacing him or her with a new tenant who is willing and capable of paying the higher market rate has become easier and more profitable for landlords. This article will focus on the common reasons tenants get evicted and how to prevent an eviction.
All tenants must understand that leases and rental agreements, which are contracts, govern most tenancies. When you sign any contract, you are agreeing to be bound by its terms. If either party does not follow the terms of the contract, one party can be sued by the other.
It's important for every tenant to read and understand all the terms of their contract (lease). All of your rights and responsibilities as a tenant are contained in the written lease agreement signed by both the tenant and landlord. Most leases, for example, have a grace period or a fee for late rent. Unless given to you in the rental agreement, the law does not provide you with a grace period.
Tenants should make sure that any oral agreements are properly written into the contract. A one-year lease, for example, may have a no-pets clause. If the landlord orally agrees to allow the tenant to keep a cat, the tenant should make sure either the landlord or the tenant crosses out the no-pets clause with a pen and adds a sentence allowing the cat before signing the lease. This is very important because handwritten terms are given greater weight in court that a pre-printed term.
Distinct differences exist between tenants' rights under a lease and rights under a month-to-month rental agreement. Under a lease, the tenant and landlord are locked into the rental agreement for the fixed rental term, usually six months or a year. A fixed-term lease provides a tenant with the assurance that the rental amount will remain the same for the term of the lease. The landlord cannot evict the tenant during the term of the lease unless the tenant fails to pay the rent or the tenant violates the terms of the lease, such as committing a crime on the premises or disturbing other tenants.
There is a drawback to the fixed-term lease. If for any reason you are unhappy with the unit, you are bound to the contract until the end of the lease term. If you leave, you are still liable for the full dollar amount of the contract, not just for the months you lived in the unit. The landlord may sue you or send collectors after you for the full amount.
Under a month-to-month rental agreement, the tenancy is automatically renewed each month unless one party gives the other a 30-day written notice terminating the tenancy. A month-to-month tenancy usually results when a fixed-term lease ends, is not renewed or the tenant remains in the apartment.
The downside to a month-to-month tenancy is the landlord can raise the rent anytime simply by giving the tenant a 30-day notice, unless the apartment is under Rent Control.
Tenants have a right to habitable housing, which includes safe and decent housing.
The law provides that safe and decent housing includes the following:
If a tenant's apartment fails to provide these guarantees, the law provides protections for tenants to take action against the landlord. A tenant may repair the damage and deduct the cost of the repairs from the rent. A tenant may also withhold rent under certain circumstances.
Repair and deduct and rent withholding can be risky, however. A tenant who asserts such rights risks an eviction. A tenant should only attempt these remedies upon the advice and assistance of an attorney. A safer option is to report any problems with your unit to the local Health Department. To avoid an eviction, a tenant should always pay his or her rent on time.
Making habitability issues more difficult is the fact that landlords have become less tolerant of tenants. In years past, landlords would accommodate tenants in order to avoid a vacancy. In Los Angeles County, there are more tenants than available apartments. More than ever before, landlords are willing to evict "trouble" tenants.
Some landlords consider a tenant "trouble" if the tenant simply asks for necessary repairs to her apartment. Even a complaint regarding legitimate repairs may give a landlord an incentive to evict the tenant so another tenant who will accept the problems or pay the higher market rents can move in.
Before a tenant is physically evicted from his or her apartment, the landlord must go through a court proceeding. The process usually begins when the tenant either fails to pay the rent on time or the tenant breaches a term of the lease. The landlord will serve the tenant with a three-day notice to either pay the rent or quit the premises and cure the breach or quit the premises. A cure or quit notice is usually given after a violation of a term or condition of the lease or rental agreement, such as a no-pets clause. To avoid eviction proceedings, the tenant must "cure" the violation or move.
If the tenant fails to either pay the rent or cure any breaches of the lease during the three-day period and continues to remain in the apartment, the landlord will file an unlawful detainer action against the tenant. The landlord must properly serve the tenant with the court documents called a Summons and Complaint. Proper service can be accomplished by either personally handing the Summons and Complaint to the tenant or anyone over the age of 18 in the apartment, or the landlord may post the documents on the tenant's door and mail a copy to the tenant.
Once served, the tenant then has only five days, not counting the day of receiving the paperwork, to file his response, called an Answer. If the tenant fails to file an answer, a default judgment will be taken against the tenant. The tenant will then be evicted shortly thereafter.
If the tenant files an answer, the tenant will receive a notice of trial from the courthouse in about two to four weeks. Before the trial actually begins, the tenant has the opportunity to negotiate with the landlord for a mutually agreeable settlement.
If the tenant goes to trial and loses, the landlord will be granted a judgment giving him possession of the apartment and money damages, which includes the landlord's attorney's fees and costs of the eviction proceeding. The landlord will then deliver the judgment to the Marshall or sheriff to actually evict the tenant.
The Marshall will post a five-day Notice to Vacate on the tenant's door about 10 to 14 days after the trial. After the five-day notice is posted, it is a good idea to remove all valuables from the apartment, including medications, and store them at a safe place. If the tenant is still on the premises after the five-day period, the tenant will be locked out. The Marshall will physically remove the tenant's belongings from the apartment.
Both the tenant and the landlord have rights and obligations under the lease or rental agreement. Being aware of these rights and obligations is an important part of being a tenant. Tenants who know their rights and meet their obligations have the best chance for a housing situation that is problem-free.
For information on the HIV & AIDS Legal Services Alliance in Los Angeles, or to make an appointment, call (323) 993-1460.
Rose Eustachio is a housing attorney for the HIV & AIDS Legal Services Alliance.