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Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Legal
Satisfied Customers: 12925
Experience:  B.A.; M.B.A.; J.D.
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I have someone that came to stay with me and know will not

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I have someone that came to stay with me and know will not leave. I am the only one on the lease. It started as a friendly situation to help him out, buying him a new phone, feeding him, housing his dogs etc. He has not put anything towards the rent or utilities. Everything is in my name. I gave him a deadline to leave and now he is claiming his rights as established resident. I have been to the local police because he has threatened me and I am fearful. They know him from arresting him by running his plates on his car that was parked in front of the property for expired plates and stolen tags. They say their is nothing they can do. I understand I have to go through the eviction process and also know it can take up to 6 months. I need a way that will expedite this? I have been told I can not get a restraining order either because he lives in the house. Is this true, or is there any kind of order I can get.
Submitted: 3 years ago.
Category: Legal
Expert:  Phillips Esq. replied 3 years ago.

I have someone that came to stay with me and know will not leave. I am the only one on the lease. It started as a friendly situation to help him out, buying him a new phone, feeding him, housing his dogs etc. He has not put anything towards the rent or utilities. Everything is in my name. I gave him a deadline to leave and now he is claiming his rights as established resident. I have been to the local police because he has threatened me and I am fearful. They know him from arresting him by running his plates on his car that was parked in front of the property for expired plates and stolen tags. They say their is nothing they can do. I understand I have to go through the eviction process and also know it can take up to 6 months. I need a way that will expedite this? I have been told I can not get a restraining order either because he lives in the house. Is this true, or is there any kind of order I can get.

 

Response: You can get a Temporary Restraining Order even if you are living with him. Click on this link to download the forms and for self-help:

 

http://www.courtinfo.ca.gov/selfhelp/protection/dv/formsyouneed.htm

 

You can stil proceed with the eviction proceeding by giving him a written 30 days to vacate the premises. If he does not leave after the 30 days, then you must file unlawful detainer action (eviction action) in order to force him out. There is no self-remedy to evictions in California. This means that you cannot change the locks, shut-off the utilities, throw his stuff out in order to force him out. You must use the Courts to force her out.

 

Texting is not considered proper notice under California law.

 

These are proper notices:

 

(1) You served the notice to the tenant in person by handing it to her

(2) Posting the notice on the door;

(3) Mailing the notice to her by regular mail.

 

Once the unlawful detainer complaint is filed, you will give the tenant (resident) a notice (summons) of the lawsuit and he will be given opportunity to respond, usually five days. Then the Court will hear the case and make a ruling within a very short time, usually within 20 days of the hearing.

 

If the court decides in your favor, the court will issue a Writ of Possession. The Writ of Possession orders the sheriff to remove the tenant from the rental unit, but gives him five days from the date that the Writ is served to leave voluntarily. If he does not leave by the end of the fifth day, the Writ of Possession authorizes the sheriff to physically remove and lock him out, and seize (take) any belongings that he might have left in the unit. The Court may also award damages to you for tenant's destruction of your property.

If the tenant does not answer the complaint at the end of the fifth day, the Court will enter a default judgment against him. The default judgment allows you to obtain a Writ of Possession, which gives the sheriff the authority to force the tenant out of the unit.

It is very important to note that you as the landlord (the owner here) is not entitled to possession of the room until after the sheriff has moved the tenant out. So, you need to be careful about changing the locks when you receive the Writ of Possession because the tenant can stay in room until the sheriff moves him out.

 

See California Code of Civil Procedure Section 1161(2)-(4); 1167.3, Code of Civil Procedure Section 1170.5(a); California Civil Code Section 789.3., Civil Code Section 1717.

 

The unlawful detainer/eviction action would be filed in the Superior Court in the County where the property is located. Click here for more details on eviction procedures and for unlawful detainer forms:

 

http://www.courtinfo.ca.gov/selfhelp/other/landtenqa-land.htm

 

http://www.courtinfo.ca.gov/selfhelp/other/landtenudforms.htm

Customer: replied 3 years ago.
thank you very much, very helpful, one question please. This person has said he will have the rent tomorrow on the 1st. (if this is true this will be the first monies he has offered for anything in the six weeks he has been here.)
If he does present it and I dont take it will I not have a case as he is attemping, or if I do take it does that hurt my leveage.

I do not want the rent from him all I want from him is to leave, asap
Expert:  Phillips Esq. replied 3 years ago.

 

thank you very much, very helpful, one question please. This person has said he will have the rent tomorrow on the 1st. (if this is true this will be the first monies he has offered for anything in the six weeks he has been here.)
If he does present it and I dont take it will I not have a case as he is attemping, or if I do take it does that hurt my leveage.

I do not want the rent from him all I want from him is to leave, asap

 

Response: Do not take the money. You are giving him a 30-day notice to move out and NOT a three-day notice to pay rent or move out. You can give a 30-day notice without stating a reason why. However, if you give a three-day notice to pay rent or move out, then if he pays and you accept, you cannot file eviction action against him.

 

Customer: replied 3 years ago.
thank you very much.
Expert:  Phillips Esq. replied 3 years ago.

You are quite welcome.

 

Do not forget to click ACCEPT on my Answer. That is the only way that I get paid for assisting you.



Edited by AttorneyPhillips on 9/1/2010 at 1:45 AM EST
Phillips Esq., Attorney-at-Law
Category: Legal
Satisfied Customers: 12925
Experience: B.A.; M.B.A.; J.D.
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