Unfortunately you find yourself in an eviction situation. Nobody wants to be in this circumstance but it can be part of the business. Make sure you have followed the steps leading up to serving your tenants to be certain you are compliant with the appropriate regulations. Click here to read what you should do before serving your tenants.
Now you have given the offending tenants notice and file the appropriate documents in court, it is time to serve the tenants with unlawful detainer papers and await their response.
Serving Tenant Unlawful Detainer Papers
The next step to evicting the offending tenant is to serve the unlawful detainer papers to them. A process server will usually take care of that process. If it is found that there are people in the property that you did not name in your eviction filing, those people may be able to fight the eviction successfully. To include them in the eviction filings If there are, have your server serve each of them with a blank Prejudgment Claim of Right of Possession (Form CP 10.5) as well as copies of the Summons and Complaint. The Prejudgment Claim of Right of Possession gives other occupants of the property the chance to file papers with the court within 10 days to tell the judge they have a right to live on the property. If they do not file anything, then the sheriff will evict them if you win. Collect the completed and signed Proof of Service of Summons (Form POS-010) to conclude this step.
Tenant Responses
Once the tenant is served the Summons and Complaint, they will have time to respond depending on how they were served. If they were served in person, they have 5 days to respond not counting Saturdays, Sundays, and court holidays. If they were served by mail, they have 15 days to respond from the postmarked day, with the first 10 days being calendar days and the next 5 days treated the same as them being served in person.
If the tenant does not respond during this timeframe, you may be able to evict without the tenant having a say. Ask the court to make a default judgement by filling out and filing these forms:
- Request for Entry of Default (Form CIV-100);
- Judgment-Unlawful Detainer (Form UD-110); and
- Writ of Execution (or Writ of Possession) (Form EJ-130).
You will be able to take owed money for back rent from their paycheck or bank account as well.
If you want an order giving you possession of the property immediately you will ask for a Clerk’s Judgment for Possession on Form UD-110. This will get you the Writ of Execution quickly and the sheriff will use that to evict the tenant. You can later ask for a Judgment that includes back rent and court costs.
If the tenant responds they should send you a copy of the response, however to be safe you can look up the case at the courthouse to make sure if there was a response. There are different ways a tenant may respond. Most tenants respond by filing an Answer – Unlawful Detainer (Form UD-105).
But if the tenant believes the service of your Complaint is defective, he or she may file a motion to quash (void) service claiming that the landlord did not serve the Summons and Complaint properly. Or a demurrer challenging the service or the Complaint itself if they believe the Complaint fails to include all the facts or elements that the law requires to justify an eviction. Demurrers can cause time delays to the case, and if the tenant wins, the landlord may have to start the case all over and may even have to give the tenant a new notice. So it is very important that you fill out the eviction notice and the Complaint correctly.
If the tenant files either a motion to quash or a demurrer, you should seek legal counsel immediately because there are steps you need to take to avoid delays, fix any problems, and continue with the case.
If the tenant files and serves the landlord with an answer and you would like the case to move forward, you must file a Request to Set Case for Trial-Unlawful Detainer (Form UD-150) at the clerk’s office. You will have to serve the tenant by mail with a copy of the Request and make sure the server fills out the Proof of Service on the back of the Request.
