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CalAttorney2
CalAttorney2, Attorney
Category: Landlord-Tenant
Satisfied Customers: 10237
Experience:  I am a civil litigation attorney with experience representing both landlords and tenants in residential and commercial property disputes.
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I am being served an unlawful detainer from a landlord

Customer Question

I am being served an unlawful detainer from a landlord notice next week. If I file an affadavit in response which triggers a hearing on the case, does that stop the 5 day clock on them locking me out and taking my stuff? Thanks! The house was damaged 8
weeks ago by water and he is claiming it is too damaged to live in so he hast the right to break my lease and I am claiming that is not true.
Submitted: 1 year ago.
Category: Landlord-Tenant
Expert:  CalAttorney2 replied 1 year ago.

Do file an answer - if you do not, your landlord will win the case "by default" and you will be evicted.

Your landlord cannot lock you out, and cannot take your personal belongings. (below is a good overview of the required court procedure that the landlord must take to actually evict you - assuming they have a legitimate basis to do so).

Your landlord is wrong - they do not have a basis to terminate your lease due to water damage, in fact, they are liable to you for damages for failure to perform under the terms of the lease (they are responsible for making repairs to the unit and returning it to a livable state in a timely manner).

Terminating a tenancy-

1) Notice: The first step in any termination is giving notice, the landlord can simply give notice that they no longer want the tenant to live there (this is usually 30 days, or 60 days, and it can be done for no reason whatsoever, there is no fault, and while the tenant must relocate, they are not being "evicted" and there is no blemish on their rental history), they can give a "notice to pay or quit" (usually 3 day or 5 day depending on the state, and the tenant has this amount of time to pay rent that they missed or move out), "notice to "cure or quit" (the tenant has breached the lease - broken something, noisy, etc. and must stop it or fix it within the notice period, again 3 days, 5 days, or 10 days), or a "notice to quit" (this is a 3 day or 5 day notice that says the tenant has messed up so badly they can do nothing but move out within the notice period - there is no chance to "cure" - this often happens when there is illegal activity on the property).

2) Unlawful detainer/forcible entry and detainer (this is the legal proceeding where the landlord goes to court and sues the tenant to get possession - the tenant has an opportunity to appear and defend the action, common defenses include improper notice, breach of the lease (such as failure to maintain the property - "inhabitable conditions"). If the tenant answers the complaint, the parties can take "discovery" from one another and get additional information before a court trial before a judge.

3) A judgment of possession/writ of eviction - if the landlord wins the trial, they get a judgment of possession and the court will issue a "writ of eviction."

4) Forcible eviction - this happens when the Sheriff or Constable serves the writ of eviction - some jurisdictions give a courtesy notice the day or two before the eviction, others do not, but the end result is the sheriff overseeing the landlord's movers removing all of the tenant's possessions from the property and placing them on the curb, and the tenants are forcibly removed from the property. At that point, the landlord can change the locks and the tenant can no longer return (They have been "evicted").

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