Often, I review the facts presented by an unknown third party who comes to me through my social circles with questions. Today, I address a personal issue. Like you, I am a landlord, and occasionally I need to research updates in the laws to make sure I am acting appropriately.
I have a tenant who consistently violates terms of the lease. Usually, the tenant cures the problem. In order to evict a tenant for violation of the term of the lease, I must continue to issue notices and the tenant must continue to cure them. Only after the tenant fails to cure the violation can I evict them. I discuss the applicable laws here and the impact of COVID-19 on how the law is applied.
Please note that I am a law student who owns property. I am not a lawyer. This article constitutes information about the law and not advice on what you should do or how you should handle your own affairs. Please consult a lawyer if you find yourself in a similar situation.
In 2016, the tenant moved into the property and signed a written lease agreement. The lease agreement was modified several times, but each modification refers back to the original agreement which includes a promise to keep the premises clean at all times.
The tenant has repeatedly violated the terms of the lease. Neighbors accuse the tenant of drug use and drug distribution. I suspect that they are correct, but I have no conclusive proof on which I can evict. Unfortunately, rumors are not enough to prove that criminal activity is occurring on the property.
Last year, the tenant was encouraging vandals to visit the property by leaving an abandoned vehicle in the back yard. I modified the lease terms and subsequently (after an appropriate amount of time and notifications) was able to have the abandoned vehicle towed away. Since then, I have stressed that the appearance of the property on the exterior must be kept clean and presentable at all times. On Saturday, October 3, I addressed the matter of the vehicle pictured above with the tenant.
On October 3, I towed a vehicle next to the one pictured above. The tenant admitted that this particular vehicle is owned by her and that they “would take care of” the trash that accumulated in the back. Now that I know the vehicle belongs to the tenant and is roadworthy, I cannot have it towed away. However, I need to know if I can issue a notice under the terms of the lease that might result in eviction, especially now that courts are hesitant to evict after the COVID-19 Tenant Relief Act passed last month.
If I find that I can evict, I also need to know the procedure for the eviction, and the potential costs.
It is important to note that the tenant has paid all rent and has no back-debts on the contract.
Quick Access Menu: Use these links to jump to the section that interests you most.
- What is my right to evict the tenant for lease violations occurring after September 1, 2020 and before January 31, 2021? (Jump to the Right to Evict section)
- What procedure must be used to evict the tenant after the COVID-19 Tenant Relief Act? (Jump to the procedure section)
What is my right to evict the tenant for lease violations occurring after September 1, 2020 and before January 31, 2021?
Can I successfully file and show an unlawful detainer?
This section is heavy on the legal text, so I will break it down into three sections: Applicable Laws, Application to Facts, and Conclusion. In the sections that follow after this section, I will not break the text down in this same fashion.
Under the COVID-19 Tenant Relief Act, special rules apply to tenants and evictions for actions occurring during the transition period between September 1, 2020 and January 31, 2021.1Code Civ. Proc., § 1179.02, subd. (i).
The Act starts by prohibiting all unlawful detainer actions (evictions) before February 1, 2021.2Code Civ. Proc, § 1179.03.5, subd. (a). Then it provides a short list of exceptions under which an unlafwul detainer action may proceed.3Code Civ. Proc., § 1179.03.5, subds. (a)(1)–(a)(3). One exception is an at-fault cause, which includes the “breach of a material term of the lease.”4Civ. Code, § 1946.2, subd. (b)(1)(B); and Code Civ. Proc., § 1179.03.5, subd. (a)(3)(A)(i).
“Whenever the right of re-entry is given to a grantor or a lessor in any grant or lease or otherwise, such re-entry may be made at any time after the right has accrued, upon three days’ notice, as provided in sections 1161 and 1162, Code of Civil Procedure; provided, however, that the said three days’ notice shall not be required in cases where the hiring of real property is for a term not specified by the parties and where such hiring was terminated under and in accordance with the provisions of section 1946 of the Civil Code.”5Civ. Code, § 791
A tenant is guilty of unlawful detainer “[w]hen the tenant continues in possession . . . after a neglect or failure to perform other conditions or covenants of the lease or agreement . . . and three days’ notice, excluding Saturdays and Sundays and other judicial holidays, in writing, requiring the performance of those conditions or covenants, or the possession of the property, shall have been served upon the tenant, and if there is a subtenant in actual occupation of the premises, also, upon the subtenant.”6Code Civ. Proc., § 1161, paragraph 3.
Application to Facts
The tenant signed an agreement by which she promised “to keep the Premises clean and sanitary.” The keeping of trash in a common area that is not the trash area is a violation of this term. Under section 791 of the Code of Civil Procedure, I am able to provide 3-day notice and begin unlawful detainer actions. The unlawful detainer action will not be blocked by the COVID-19 Tenant Relief Act, because it is a violation of a material term of the lease.
Based on the facts presented and the applicable laws, an unlawful detainer action can be filed. The COVID-19 Tenant Relief Act does not protect this tenant from eviction.
Can the tenant avoid eviction?
“Within three days, excluding Saturdays and Sundays and other judicial holidays, after the service of the notice, the tenant, or any subtenant in actual occupation of the premises, or any mortgagee of the term, or other person interested in its continuance, may perform the conditions or covenants of the lease . . . and thereby save the lease from forfeiture.”7Code Civ. Proc., § 1161, paragraph 3.
If the tenant clears the trash and restores the appearance of the property within three days, the tenant may “save the lease from forfeiture.”
What procedure must be used to evict the tenant after the COVID-19 Tenant Relief Act?
“An unlawful detainer action under this paragraph shall be subject to the COVID-19 Tenant Relief Act of 2020 (Chapter 5 (commencing with Section 1179.01)) if the neglect or failure to perform other conditions or covenants of the lease or agreement is based upon the COVID-19 rental debt.”8Code Civ. Proc., § 1161, paragraph 3.
COVID-19 Tenant Relief Act requires specific wording to appear in notices that demand payment of rental debts.9Code Civ. Proc., § 1179.03, subd. (a) When the notice includes a demand for payment of rent, the Act also requires that landlords provide tenants the COVID-19 related financial distress disclosure form.10Code Civ. Proc., § 1179.03, subd. (d) Because the tenant has paid all rents, the special wording required by this Act is not required. No demand for rental debt appears in the notice, so the financial distress disclosure form is not required.
“Before an owner of residential real property issues a notice to terminate a tenancy for just cause that is a curable lease violation, the owner shall first give notice of the violation to the tenant with an opportunity to cure the violation pursuant to paragraph (3) of Section 1161 of the Code of Civil Procedure. If the violation is not cured within the time period set forth in the notice, a three-day notice to quit without an opportunity to cure may thereafter be served to terminate the tenancy.”11Civ. Code, § 1946.2, subd. (c)
“After such notice has been served, and the period specified by such notice has expired, but not before, the landlord may re-enter, or proceed according to law to recover possession.”12Civ. Code, § 790
In this case, the notification requirements of Civil Code section 1946.2 apply, because the tenant has been living at the property since 2016. The just cause can be cured, so two separate notices will be required. First, I must issue a 3-day notice with an option to cure. After a failure to cure, I must provide a second 3-day notice.
This is an often overlooked portion of the text. First there must be a three day notice with an option to cure.13Civ. Code, § 1946.2, subd. (c) Only after that notice and “if the violation is not cured,” may the landlord issue “a three-day notice to quit without an opportunity to cure.”14Civ. Code, § 1946.2, subd. (c) The tenancy terminates at the end of the second notice.15Civ. Code, § 1946.2, subd. (c)
Filing the Action
The COVID-19 Tenant Relief Act requires that “[a] plaintiff in an unlawful detainer action shall file a cover sheet . . .”16Code Civ. Proc., § 1179.01.5, subd. (c)(1). California Superior Courts have created a new form to use as the cover sheet: UD-101. The form is available on the superior court website.
Other than this modification, which requires a cover sheet, the same complaint (UD-100) should be filed.