Winning Eviction Trial w/o Lease?

Question

Hi, All. I recently bought a small multi-family property and needed tenants to move out. Per agreement, listing agent sent 60-day notice by plain mail and door post 30+ days before escrow closing. One tenant did not pay rent for remaining term of old lease nor agreed to move out even I offered free rent this month and 50% rent for relocation expense. His statement indicates that he is taking advantage of the court backlog. Listing agent emailed me his declaration of service for trial evidence. When I consulted the lawyer, lawyer said the case might not be easy because I do not have a lease agreement with tenants. On another hand, a friend told me that I can complete eviction in 1 month in CA without trial.

1. is my friend right?

2. is the lawyer right?

3. is listing agent's declaration of service to tenant alone be sufficient evidence to win an eviction trial? Or listing agent must show up on court as a witness?

4. Is there typical compensation to witness in a eviction trial? Even there is none, suggestion is still welcome.

5. I would like to report to credit agent, the government or other organizations this bad tenant. Is it possible? If yes, how?

6. what should I do to maximize my chance to recover my loss in this eviction?

Thanks folks.

Cara Lonsdale · Answer

@Jing H. in the absence of a lease, the judge will most likely look at the facts.  The tenant is living there, the previous owner collected $XX rent.  That is the basis for your lease.  Issue the tenant the pay or quit notice, and start eviction proceedings.

There is VERY little defense to a non-payment eviction.  It is usually pretty cut and dry.  The judge will ask the tenant if he paid his rent.  If he says yes, the judge will ask for proof.  In the absence of proof, the judge will rule in your favor.  That judgment will be reported to all 3 bureaus automatically.

Start now, don't linger any longer.  The process shouldn't take more than 3 weeks to get to court....unless the courts are backed up.  Even still, you will want to get the process started soon.

And stop offering this bogus tenant money!!

Andrew B. · Answer

You never have "No lease" unless you are dealing with an illegal squatter. The old lease transfers to you upon sale of the property, and is equally as legally binding as though you had signed it yourself. If you are a responsible landlord, you received a copy of this lease before closing. I am assuming you did not and are not, so you should do everything your attorney tells you to do, and avoid seeking advice from anymore friends.

Nathan Gesner · Answer

The first lesson is that you shouldn't have bought the property until the problem tenants were removed. Sending notice doesn't mean squat if the tenants don't abide by it. The seller should have evicted when the tenant failed to pay last month's rent or vacate. You should have extended closing until the issue was resolved.

Actually, the first lesson is that you shouldn't buy property in California but I'll skip that.

The second lesson is that you shouldn't ask friends for advice unless your friend happens to be an attorney with experience in residential rentals and the California eviction process.

The third lesson is that you should get a new attorney, preferably one that specializes in evictions. Tenants can be evicted even if they do not have a written lease agreement. If there's nothing in writing then it's considered a month-to-month tenancy. When you bought the property, that month-to-month tenancy transferred to you. I believe you can evict now based on the fact the tenant was already served notice by the previous owner but refused to pay or leave.

The fourth lesson is documentation makes or breaks your investment. If the seller served notice, you should have a record of that notice. You should also have evidence the tenant failed to pay their last month's rent. Nobody can guarantee you will win in court but it's normally pretty easy as long as you can verify your story with documentation.

If you take the tenant to court and evict, you will also be awarded a judgement for whatever the tenant owes. If the tenant refuses to pay, you can certainly send them to collections and it will sit on their record for others to see. Keep in mind you can turn them over to collections even without a judgment. In other words, if the tenant moved out April 20th without paying any rent or cleaning the unit, you could submit all the documentation to a collections agency and let them go after it. There may be a few limitations but it's minimal in my area.

Jing H. · Answer

Hi, James. The funny thing is that attorneys specialized in eviction disclose only some or most facts even after accepting the case for various reasons.

James Wise · Answer

If given the choice between taking legal advice from my friend or the lawyer I would go with the lawyer.

When going to court whomever actually delivered the eviction notice needs to show up to testify. As for paying a witness for their time i'd imagine you want to do that to make sure they show up on time. I've only ever had hourly employees go to court for me so it was just normal hourly pay. In your case i'd imagine $100 for the trouble would be sufficient.

Jing H. · Answer

Thanks, Andrew & Cara, for eliminating the uncertainty I have.

Jing H. · Answer

Thanks for your advise, Nathan. This bad tenant paid rent to previous owner on time. Only after I became owner he did not pay the last and partial month.

I am working with an attorney specialized in eviction and has pretty good reputation. His assistant talked to me. I guess I am used to be in control and 'wait and see' puts me into problem solving mode.

Winning Eviction Trial w/o Lease?

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