If a commercial tenant does not pay rent on time, or violates its lease in some other way, the landlord is entitled to have the sheriff evict the tenant from the property.? The legal steps for an eviction lawsuit, called an ?unlawful detainer,? must be followed exactly, and whenever the tenant properly disputes the landlord?s claim, the case must be decided by the court.? Because commercial rental property is valuable, both parties are usually represented by experienced real estate attorneys.? Here is how a commercial eviction typically works in California.
Steps of a Commercial Eviction
Step 1:? Three-day notice prepared
The landlord or his attorney prepares a ?three-day notice? to ?pay rent or quit? or ?cure breach or quit? (to perform other terms of the lease) or of ?termination of tenancy.?? The notice must be in a specific legal form.? A commercial landlord can choose between two types of three day notices for a failure to pay rent:? one that specifies the exact rent owed (which must be accurate to be legally effective), and one that estimates the rent owed, sometimes used when the tenant pays a percentage rent.? If the lease requires the tenant to pay both rent and other separate amounts, the landlord should get legal advice on whether two separate notices are needed.? If the landlord accepts an overpayment of the rent because the tenant has miscalculated and overpaid estimated rents, the tenant will not only win the eviction action but be entitled to recover attorney?s fees.
Step 2:? Notice served
The landlord ?serves? the tenant by delivering the notice to the tenant personally, or to a responsible person (such as a business officer or manager) on the premises.? If no one is available, the landlord can fasten the notice to the front door of the premises and simultaneously send a copy of the notice by certified mail, return receipt requested.? The landlord must then prepare a ?proof of service,? in the proper legal form, stating the date the three-day notice was served.
Step 3:? Three day wait
The landlord must wait three days starting the day after service.? If the third day is on a weekend or holiday, the wait is until the end of the next business day.? If the tenant pays all rent due or corrects any other specified violation of the lease during this time, the eviction stops. However, the eviction does not stop if the tenancy is being terminated for criminal activity or other conduct specified by the lease as cause for immediate, non-curable termination.? If the tenant pays only part of any back rent due, the landlord can accept it but should simultaneously inform the tenant in writing that by accepting the part payment, the landlord is not waiving any rights to proceed with the eviction.
Step 4:? Summons and complaint
If the tenant has not paid the back rent, performed as required, or left the premises during the three days, the landlord will need an experienced real estate attorney.? The tenant will need to be properly served with a summons and complaint for unlawful detainer by a registered process server or other authorized person, or by another method that is legally authorized.? The complaint and proof of service must then be filed with the court, along with copies of the lease and the three day notice and its proof of service.?
A complaint for unlawful detainer is a technical, situation-specific legal document, and not a good do-it-yourself project, particularly when commercial property is involved. If you are a landlord and make a mistake, the tenant may challenge portions of your complaint that are not properly prepared, substantially delaying the eviction. ?
Step 5:? Court proceedings
If the tenant does not contest the eviction:
A tenant who was personally served has five days to contest the eviction by filing legal documents.? If another method of service was used, the tenant will have ten to fifteen days. If the tenant does not contest the eviction, the landlord?s lawyer will seek a default judgment of possession from the court. Once granted, the case goes to the sheriff?s office for tenant lockout.?
If the tenant contests the eviction:
A tenant may contest the eviction by filing legal documents.? Again, this is not a good ?do it yourself? project.? If you are a tenant, you may have valid legal defenses to the eviction of which you are not aware, or even counter-claims for money against the landlord.? If the tenant contests the eviction, the attorneys for both sides will seek a court date for a trial, generally within 30 days after the tenant?s legal documents were filed.
A trial is then held before a judge. ?If the landlord wins, the court will award the landlord unpaid rent and payment for other losses as provided in the lease.? Once a judgment is entered in the case in the landlord?s favor, the tenant may ask the court for more time before the tenant has to leave.? The court may give the tenant up to 41 extra days but usually requires the tenant to pay the additional rent in advance.? After the time is up, the court sends an order to the county sheriff giving him the right and duty to carry out the eviction.?
Step 6:? Lockout
The sheriff then posts a five day notice to vacate the premises on the tenant?s property. On the sixth day, the sheriff meets the landlord or his representative at the property at a designated time. The landlord then receives a receipt of possession of the property.?? If the tenant is still there when the sheriff arrives, the sheriff will physically remove the tenant and the landlord can have a locksmith change the locks at that time.? This is called the ?lockout.?
Step 7:?? Notice to claim property
The landlord must give the tenant 15 days after the lockout to claim any possessions from the property, or if the tenant left before the lockout,18 days after the mailing of a ?notice of belief of abandonment? to the tenant?s last known address.? The notice must specify the property so the tenant can identify it, and specify any storage costs.? The landlord should photograph and inventory the belongings to prevent any claim of theft or negligent destruction, because the law requires them to be stored safely and returned if the tenant claims them in time.? The landlord cannot legally hold belongings as ?security? for payment of money awarded by the court.
Step 8:? Unclaimed property disposed of or sold
After the waiting period is over, the landlord can dispose of the commercial tenant?s property if it is worth less than $750 or $1.00 per square foot, whichever is greater.? If it is worth more, the landlord must auction it through a public sale held after properly published notice, and the proceeds, minus the cost of removing, storing, advertising, and selling the property, must be turned over to the county to be held for the tenant.
Alternatives to Commercial Eviction
The drawbacks to a commercial eviction are obvious.? For the tenant, the eviction often spells the end of the business.? The landlord may find that in a poor economy, the premises cannot be quickly re-leased, particularly if the evicted tenant modified them extensively.? If the evicted tenant is insolvent or bankrupt, a court award of unpaid rent and other expenses may be worthless.?
For this reason, it is always worth exploring whether a rent reduction or other concession (such as the landlord assisting the tenant to move to a smaller, cheaper vacant space in the same building) would enable the tenant to continue in business and the landlord-tenant relationship to continue as well.
Call San Diego Law Firm for Help with Commercial Evictions
If are a commercial landlord needing help with eviction, or are a commercial tenant with a legitimate potential defense against an eviction, contact the skilled business real estate lawyers of San Diego Law Firm.? We have many years of experience in all types of commercial real estate disputes, including commercial evictions.? We can help you and your business.? Please call San Diego Law Firm at (619) 794-0243 to schedule a consultation. We look forward to helping you.
Source: http://www.business-realestate-law.com/blog/how-a-california-commercial-eviction-works/
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