Family Law San Diego – RESTRAINING ORDERS AND EVICTIONS
In family law Dan Diego cases, and in other cases involving roommates, cohabitants, and tenants, the issue of restraining orders and evictions can be difficult matters. Simply obtaining a domestic violence restraining order or civil harassment order is not enough to terminate a person’s lawful right to occupy a residence.
Someone who lives in a residence owned by someone else for a period of time with the consent of the owner establishes “tenancy.” This can include boyfriends, girlfriends, houseguests, paying tenants, guests of tenants, and the list goes on. When the landlord wants a person out, there are rules which must be followed. The consequences of using “self-help” when evicting people from properties can be severe.
If a landlord believes he or she has cause to evict a tenant or any other occupier of the real property, the landlord must first serve a demand notice. This lets the tenant know that the landlord intends to terminate the tenancy—in other words, to kick the person out. The duration of the period of the demand, which can be three days, 30 days, 60 days, or 90 days, depends on the type of tenancy established by the relationship between the landlord and the tenant.
The landlord is restricted in the things he or she may do during the period specified in the demand notice. Failure to abide by these restrictions can have consequences, including further delaying the eviction process. If the tenant refuses to surrender the premises (ie., move out), then the landlord must file an action in a superior court known as an unlawful detainer.
Once the unlawful detainer is filed in court, it must be served upon the tenant. Generally, the tenant must be personally served, that is, the unlawful detainer complaint must be handed to the tenant. Also, the landlord may not be the person who serves the tenant.
How long does it take?
It is not uncommon for a person whom the landlord is attempting to kick out of a residence to avoid being available to be served. In this situation, service of the unlawful detainer complaint may be accomplished by what is known as substituted service.
After service, the tenant has only a short time to file an answer to the unlawful detainer complaint with the court. Depending on the type of service of the unlawful detainer complaint, the tenant will have between five and fifteen days to answer the unlawful detainer complaint.
If the tenant does not answer at all, the landlord may seek what is known as a default judgment. The judge can simply declare that the landlord is the prevailing party in the lawsuit and enter judgment on his or her behalf.
After the default package is filed with the court, however, it can take from four to six weeks for the court to enter judgment. After that, it can take from two to four weeks for the court to issue a writ of possession allowing the Sheriff to eject the person from the premises.
If the tenant does file an answer, the landlord must file with the court a request for the court to set a trial date, which date will be set within fifteen to twenty days. At the trial, the tenant would be able to make his or her case that he or she should not be kicked out of the residence.
If the landlord prevails at trial and the court issues a writ of possession, the Sheriff will post the writ at the premises within seven to fourteen days of receipt. The lockout will be tentatively scheduled for seven to 21 days after the posting. The Sheriff’s office will notify the landlord of the tentative lockout date. The day before the eviction, the Sheriff will notify the landlord of their time of arrival.
The approximate time frame between the service of the unlawful detainer complaint and the eviction of the tenant varies greatly. If the tenant does not contest the lawsuit, the process may nevertheless take between eight and ten weeks.
California Civil Code section 1006
If the tenant contests the eviction, the time may take between ten and fourteen weeks if they do not also engage in delay tactics. If the tenant contests the eviction and engages in delay tactics, the process may take between fourteen and twenty-four weeks.
California Civil Code section 1006 provides that occupancy for any period confers the title upon the occupants which are sufficient against all except the government and those who have the title by prescription, accession, transfer, will or succession. Therefore, someone living with another person, even rent-free, a boyfriend or girlfriend has some right to remain in the residence.
A “tenancy at will” is created when the tenant takes possession with the permission of the landlord but for an unspecified period and without the requirement to pay rent. If, however, the landlord accepts rent from the boyfriend or girlfriend covering any specific period, the tenancy converts to a periodic tenancy.
The importance of the type of tenancy which is held by a boyfriend or girlfriend is the way the landlord or the tenant may terminate the tenancy. The tenant may terminate the tenancy at any time without notice. So, if the tenant had been paying for things such as the cable bill or utilities, but without an agreement that such payment was in exchange for the continued right to live at the residence, the landlord will likely not have a claim for continued payment of such bills. The landlord, on the other hand, is required to give an at-will tenant 30 days’ written notice to terminate the tenancy.
So, because boyfriends and girlfriends have these rights, not even a domestic violence restraining order directing the tenant to stay away from the landlord and/or the landlord’s residence can deprive the tenant of his or her possessory rights in and to the protected party’s premises. The restraining order itself is not the vehicle by which a lawful eviction is affected. In fact, despite some of the orders which are contained in domestic violence restraining orders, there must be a valid writ of possession and five days’ notice to allow the tenant to voluntarily vacate the property.
If you need a Family Lawyer San Diego Free Consultation, you should seek the advice of a California State divorce attorney. The San Diego Divorce Attorney at the Law Office of Michael C. MacNeil have many years of divorce law experience and will competently represent your family law case. Please call for a low-cost divorce attorney consultation at (858)922-7098. We look forward to helping you with any of your questions about divorce in San Diego.