Landlord Rights and the California Code of Civil Procedure 1161

Do you have tenant that refuses to leave? In the big picture, the law is on your side, however, enforcement requires understanding the details involved. In a nutshell,  The California code of civil procedure 1161 regards possession of real property by a tenant or executor or administrator of an estate, and the grounds under which said persons will be guilty of unlawful detainer.  This includes when a person stays in a residence despite the lease or agreement’s expiration, cancellation or termination. And it also includes a person occupying the premises as a servant, employee, agent or licensee after the lawful termination or expiration of the agreement for occupancy. The code states that nothing shall prevent the tenant from being moved from the premises lawfully, except in tenancy at will, which requires termination by notice.

Other situations fall under the umbrella of CCP 1161 such as a person staying without permission of a landlord after defaulting on rent payments or failing to honor the terms of the lease by withholding payment or subleasing the property.  To establish your rights as landlord under the law, you must follow the procedures as outlined in the code; this includes how a landlord shall submit a request for payment or submit an eviction notice. The payment guidelines are included, as are how the notice shall be made (within one year after rent becomes due). The code also contains provisions for tenancy involving agricultural lands, and under what circumstances the tenant shall not be guilty of unlawful detainer for a particular year. Once a tenant receives notice, they have three days upon receipt of the notice to correct their violation.

CCP 1161 also covers the tenant you hope you will never rent to: the public nuisance, the polluter, etc.  Also included in the code is a tenant committing waste upon the premises (being a public nuisance, for example) or improperly subleases the property; the lease terminates if these conditions are met.  As distasteful as your tenant may be, CCP 1161 still outlines how the landlord must give notice and the number of days given to the tenant to correct the issue. The code addresses commercial real estate property and the default in the tenant’s paying of rent, with rules regarding the number of days available to pay rent, if the amount owed is an estimate and not an approximation, and acceptance of partial payment of rent. In this code, “commercial real estate” is defined as any buildings in the state of California that are not mobile homes or recreational vehicles.

Hopefully, you will not wind up in court – yet if you do, the issues regarding court files of landlord and tenant court actions are covered in CCP 1161. The code outlines several factors which must be met for an individual to have access to said records, such as being a party to the action, furnishing the name of at least one plaintiff and one defendant in the action, plus the premises it concerns, and other conditions attorneys or individuals must meet to view the records. Further, the code discusses how the court shall notice defendants in the action upon filing of a case for unlawful detainer (eviction) and what their notice shall require. Required in the notice is a statement about the State Bar of California’s lawyer referral services, the name and telephone number of the county bar association, contact information for a federal legal help service, and a statement regarding the unavailability of the file for 60 days after filing except to authorized persons as denoted above.

If you’re suffering in silence while the rent was paid on time but really want your tenant to vacate, CCP 1161 cites the conditions under which a landlord may terminate a lease or refuse to renew a lease are outlined in the code. These conditions include a tenant or member of the tenant’s household that has experienced the following: domestic violence, stalking, sexual assault, or abuse of an elder or dependent adult, provided they meet certain requirements. These conditions must have documentation including a temporary restraining order, emergency protective order, or protective order issued within the last 180 days, a copy of a police report from the last 180 days stating the tenant or member of the tenant’s household has filed a report alleging they were the victim of domestic violence, stalking, sexual assault, or abuse of an elder or dependent adult. The person who is alleged to have committed the acts must not be a tenant of the filing party’s dwelling unit.

Here is where it may become even complicated, as such it is very important to understand the finer details of CCP 1161 before taking action: the code continues that a landlord may terminate or refuse to renew a lease if certain conditions are met. One of the following conditions must be met: If a tenant allows the individual against whom a protective order was issued into the premises or if the landlord believes the individual against whom the protective order was issued poses a threat to other tenants on the premises, and the landlord previously gave three days notice to the tenant to change the situation.

Were you renting a floating home? CCP 1161 covers that  and discusses the meanings of “manufactured home,” “mobile home,” and “floating home,” and how the tenants of these dwellings and real property may be removed.  In the case of foreclosure on a rental unit on a month-to-month lease, the code states that a tenant or subtenant must be given 90 days notice to leave the premises and how if a tenant is on a fixed rental lease, then they shall retain occupancy to the premises, and the lease shall still be valid under the foreclosure, until the end of lease term. There are certain conditions under which the lease may be terminated with 90 days notice after foreclosure of the premises and these are listed in the code.  The items and language needed for the cover sheet required when giving notice upon foreclosure on residential property is detailed in the code.  Additionally, the conditions under which no cover sheet is needed are also included. This code is in effect until December 31, 2019, and is used by the court, tenants, landlords and their legal representatives concerning residency in a property.

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