Landlord / Tenant / Unlawful Detainer
Unlawful detainer proceedings
When a landlord wants to end a tenancy involuntarily after the tenant has taken possession of the rental premises, the landlord must take certain legal steps to do so. An unlawful detainer proceeding is an accelerated method for recovery of possession of leased premises. It is a limited proceeding designed to permit a landlord to recover possession of real property from a tenant who is wrongfully in possession. (Because of its summary character, an unlawful detainer action is not a suitable vehicle for trying complicated ownership issues involving allegations of fraud.)
Like civil actions generally, unlawful detainer actions are initiated by the filing of a complaint, issuance of a summons, and service of the complaint and summons on the defendant.
Landlords in California must first follow all requirements for eviction proceedings prescribed in California statutes and follow any applicable local ordinances.
Three-day and 30-day notice
An unlawful detainer proceeding is usually initiated by the landlord's serving a 3-day or 30-day notice on the tenant. A landlord must strictly comply with the statutory requirements for service of the notice to quit the leased premises. Among 3-day notices are notices to quit ("leave"), notices to perform covenant or quit, and notices to pay rent or quit. Three-day notices to quit are used when a tenant has allegedly breached ("broken") a covenant ("agreement") in the lease that cannot be cured. A 3-day notice to perform covenant or quit is used when there has been a curable breach other than nonpayment of rent, for example, breach of a covenant not to assign or sublet the premises. The most common notice is a 3-day notice to pay rent or quit.
A landlord’s choice to declare a forfeiture of the lease or rental agreement on a 3-day notice is nullified and the lease or rental agreement remains in effect if the tenant performs within 3 days after service of the notice or if the landlord waives the breach after service of the notice.
A 30-day notice to quit usually addresses a situation in which the landlord wishes to terminate an indefinite-term tenancy (that is, a holdover tenant or a tenant on a month-to-month tenancy). The landlord and tenant may provide by agreement at the time the tenancy is created that either party may terminate the tenancy on less than 30 days’ notice, but the agreement may not provide for less than 7 days’ notice.
No notice is required for an unlawful detainer action based on the expiration of a fixed-term tenancy, nor is notice required when a tenant occupies the property as part of his or her employment (for example, as an apartment manager), which has been terminated.
Filing a complaint
After you have complied with applicable notice requirements, the residential eviction process is begun by filing a complaint with the local court. To file a complaint, you may use Complaint Unlawful Detainer (Form UD-100) and file the form with the local court, paying the applicable filing fee.
Obtaining and serving the summons
You then obtain a Summons — Unlawful Detainer (Form 982(a)(11)) from the local court and must serve the summons on the tenant, adhering to appropriate service requirements.
Responding to the complaint. As a tenant, if you are served with a Summons — Unlawful Detainer (SUM-130) and complaint concerning an eviction, you must respond to the summons. You may use Judicial Council Form UD-105, Answer — Unlawful Detainer, to respond and must file the answer form with the local court that issued the summons. You must also pay a filing fee when filing the answer form, unless you qualify for a fee waiver.
Download fee waiver forms and instructions by clicking on the form number below:
The following forms are used for later filings in your case:
- FW-002 Request to Waive Additional Court Fees (Superior Court)
- 982(a)(18.1) Court Fees and Costs Order on Application for Waiver of Additional
NOTE: These are confidential forms for the court. Do not have them served on the other party.
If there is more than one tenant, or defendant, listed in the complaint, each tenant must respond separately or a default judgment may be entered against the tenants who do not file an answer. Two tenants can share one answer form, but each must sign the answer form individually and pay a separate filing fee. If you are filing the answer for yourself only, put your name on line 1 of the answer form. If you are filing the answer for yourself and another tenant named in the complaint, put both your names on line 1.
Each tenant named in the complaint has five days after the summons is served to file an answer form at the court that issued the summons. (The five-day response time includes Saturdays and Sundays, but excludes all judicial holidays. If the last day for filing a response is a Saturday or Sunday, the tenant has until close of business on the next court day to file a response.)
A letter or phone call does not serve as a response. The answer must be on the proper legal form — Form UD-105, Answer — Unlawful Detainer — in order for the court to hear the case.
If an answer is not filed on time, the tenant may lose the case, be evicted, and have his or her wages, money, and property taken by the landlord without further warning from the court.
The tenant’s time to respond to a complaint for unlawful detainer is not affected by the tenant's quitting of the leased premises.
Serving the answer and completing a proof of service form: Before you file your answer with the court, you first have to make sure that a copy of the answer is served on the landlord of the property. This means that a copy of the answer along with a proof of service form must be given to the attorney for the landlord or, if the landlord is not represented by an attorney, to the landlord. It can be served by mail or hand delivered, but only by a person who is at least 18 years of age and is not a plaintiff or defendant in the case.
A Proof of Service form is used to show the court that a copy of your answer was sent to the other party in the case before you filed the original answer. It does not have to be received by the other party before you file; it must only be put in the mail. The Proof of Service must be signed by a person over 18 who is not a party to the case. This means that neither you, nor any other tenant in the case, can sign the Proof of Service form. You can obtain a Proof of Service form from your local superior court or from books containing general legal forms available from legal publishers or bookstores.
The court will not accept an answer for filing without a signed Proof of Service form attached.
You may want to call an attorney for assistance. If you do not know an attorney, you may call an attorney referral service or a legal aid office.