The eviction process

Part I – The Eviction Notice

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PArt I – The Eviction Notice

past due rent or other Violations

The typical eviction process starts when rent becomes past due. Rent becomes due the day agree to on the lease. Most leases have a grace period of a few days, before late fees are assessed, but the landlord can choose to evict prior to the end of the grace period. The grace period has no effect on when rent is due.

Evictions also result from when the tenant breaches a provision in the rental agreement. For example, if a tenant illegally sublets part of their rental, or is keeping a pet contrary to the lease or has stayed past the lease, a landlord may start the eviction process by sending them the proper type of eviction notice.

Tenant on Notice

When rent becomes past due, or there is a breach of one of the terms of the lease, landlords must notify the tenants with a proper notice. California Rules and Local Rules will dictate what type of eviction notice is required and what must be disclosed. Just cause protection is afforded for tenants, and a legally valid reason must be given with the eviction notice.

In San Jose, CA, landlords must also include a specific local disclosure and send a copy of the 3-day notice to the city (see, “San Jose Eviction Laws“).

service of notice

Once a proper 3-day notice is written and disclosures are included, it must be served on the tenant. The rules for service of a 3-day notice is not as strict as it is for a summons. Typically, the landlord or the landlord’s agent can serve the tenant by either: 1) giving the notice directly to the tenant (personal service), or 2) giving the notice to someone who lives at the residence, who is of age, or leaving it in a conspicuous place and then mailing a copy of the notice to the tenant (substitute service). Service of a 3-day notice can be done by anyone over the age of 18 and only one named tenant needs to be served.

tenant’s choice

A tenant who receives a 3-day notice to pay or quit must either pay the past due rent or move out. If the tenant decides to do neither, the landlord must file an eviction (or unlawful detainer) lawsuit to force compliance. California State Law forbids landlords from using “self-help” to evict a tenant (see, “Say No to Self-Help“). If the tenant has a legitimate reason for withholding rent, the tenant can assert an affirmative defense to an eviction lawsuit or file a separate lawsuit outside of the eviction court system.

the 3-day wait (or 30/60/90-Day Wait)

After a 3-day notice is served, the landlord must wait “3-Court-Days” before taking any additional steps. The 3-Court-Days do not include weekends and court holidays. For example, if a notice is served on a Thursday: Day 1 would be on Friday, Day 2 would be on Monday, and Day 3 would be on Tuesday. On Wednesday, Day 4, the landlord can start the eviction proceedings.