What’s an Eviction, Really?

Many of my clients are confused about what an eviction really is. They have received unofficial notices, “casual” chats, and many other such attempts by landlords to get them to move.  These type of maneuvers aren’t evictions.

I don’t want you or any tenant to be fooled by attempts to get you to move out of your home without proper notification.

A great resource

The San Francisco Tenants Union, an organization where I volunteer my services, produces the Tenants Rights Handbook. It’s chock full of information, so much so that it can be difficult to navigate if you are looking for a specific piece of information.   But it’s well worth your time and effort.

The Handbook has an excellent overview of what isn’t an eviction…and what is.

Eviction defined

An eviction is a legal process. In the court system, it’s called an “unlawful detainer.” In other words, what the landlord will allege is that you are withholding from a lawfully entitled person (the landlord) the possession of the apartment.  The landlord must prove he is entitled to the possession of the apartment.

The landlord changing the locks or cutting off your electricity is not an eviction.  The landlord verbally threatening you or throwing your stuff out into the street is not an eviction. If you have experienced these actions from your landlord, I recommend calling an experienced tenant attorney to learn how you can protect yourself from this type of behavior.

Unless you are a sole lodger living with the landlord (which is a rare case), simply receiving a written notice of an eviction is not the eviction. It’s only one step in the eviction.

Beware

But beware. Unlawful detainers have their roots in English common law, which basically has the idea that landowners should have their land back as quickly as possible. Therefore, unlawful detainers move much more quickly than other lawsuits, which can last for months or even years.

Unlawful detainers proceed so quickly that unless you mount a defense, you could be out of your home in approximately 1 month. That is why it’s important to move quickly to defend your rights once you have received an eviction notice.

Only a judge and a jury

Despite the quicker legal process, if your landlord threatens you by telling you that you must leave in ten days or some other time period, don’t believe them. Only a judge or a jury can legally tell you to move, and only the sheriff can legally move you and your belongings.

Don’t be fooled by a landlord who is trying to intimidate you and who is counting on you not knowing the law.

It’s good to live in San Francisco

As the San Francisco Tenants Handbook so rightly states, there is a great difference between the California state law and the San Francisco Rent Ordinance. Even though there’s some disadvantages to living in the San Francisco city limits (like low vacancies and high rents), there are significant benefits if your unit is covered under the San Francisco Rent Ordinance.

California state law does not require the landlord to have a “just cause” to evict you. Basically, California state law requires that the landlord not have an illegal reason to evict you. Under the San Francisco Rent Ordinance, the landlord must have a good reason to evict you. There are a number of these “just cause” reasons, including you don’t pay the rent, you break a term of the rental agreement even after getting a written notice from the landlord, or you create a nuisance or do substantial damage to the unit. For more, check out my earlier blog called “What is “Just Cause” Eviction?”

The eviction process: from the Notice to Courtroom

There are many your unlawful detainer procedure could go, depending upon what you or your landlord does. Here’s one way it could go in San Francisco:

The eviction notice

You are served with a Three-Day Notice to Pay Rent or Quit. You fail pay the rent within the three days stated on the notice. Then you are served with legal papers, including a summons and complaint and other papers commanding to you to file a response within FIVE calendar (not business) days. Yes, as I wrote earlier in this blog, it’s quick.

You then file a response, which in the legal system is called an answer. Then the landlord will file a motion to set the matter for trial.

The court process

The Superior Court will schedule a settlement conference the week before the trial, and you will have an opportunity to settle the case at that time.

If you do not settle at the settlement conference, then on Monday morning at 9:00 a.m., you will usually be directed by the judge to attend another settlement conference. This settlement conference can last all morning.

If you do not settle, then you report back to the judge in the Housing Court courtroom. The judge might try and mediate the case if you and your landlord are close to a settlement. Otherwise, the judge will tell you that you have been assigned to a courtroom and to report to that courtroom now.

But there’s much more

These are only the basic steps from Eviction Notice to Courtroom. There’s many steps I have left out, including any preliminary motions, demand for jury, and discovery. The unfortunate reality is that the landlord has likely done this legal action before and knows what he is doing, or has hired an attorney who knows the system.

Many tenants do not know what to do and can get lost in the legal requirements—or lose opportunities—since they do not know what to do. That’s why I advocate talking to a tenant organization or an experienced tenant attorney to discuss your case.

Know Your Rights. Protect Yourself.

 

Ready for Aggressive Legal Help?

Talk with a tenant lawyer in an obligation free telephone consultation.

Mary Catherine Wiederhold

Tenant Attorney
1458 Sutter Street
San Francisco, CA 94109

Our offices are conveniently accessible to public transportation.

The use of the Internet or this website for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through these media.