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Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 86628
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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Real Estate question: I have an squatter and have tried to

Resolved Question:

Real Estate question: I have an squatter and have tried to get him out with no results.
The Fresno Police sends me to the Sherrif and Sherrif connects me back to the police.
Police keeps telling me that I need to evict. Squatter is not my tenant. They are asking me to prove I am the owner[I do live in San Jose not Fresnoi] So I am doing all this by telephone. I have access to a contractor[ready to break the lock if there is no answer and to install a new lock.
I told police this squatter belongs to a gand [bulldogs], they say the squatter is entitle to belong to any gang he wants; he is smoking marihuana out of the apartment and police says is probably 'medicine' marihuana.
This is want I plan to do and I want your answer if this is an ok plan or you have a better answer for me:
I plan to give squatter a 24 hour-Notice and if there is no access, my contractor will break the lock to gain access. I will be notifying the police and hoping they will show up for my contractor safety.
At the same time I need access because I am appraising the aprtment for a bank refinancing and the bank representative will be there as well.
Do you believe this is a good plan or do you have a better suggestin for me?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation. No, I am afraid that this is not a good plan. Allow me to explain why.

What this squatter is is called a tenant at sufferance. A tenant at sufferance is someone who has no right to occupy the premises, but is tolerated by the landlord and may be terminated at the will of the landlord. Of course you never tolerated this to begin with, but, this is how the Court sees it.

In California, a tenant at sufferance has very few rights, but one of them is to be evicted like a "regular" tenant. However, unlike a regular tenant, you really owe the tenant at sufferance no notice before filing for an eviction against them. California Real Estate Law, 5e; William H. Pivar, Robert J. Bruss.

As such, you have two options:

1) Send them a LETTER stating that unless they leave voluntarily now, you would file for an eviction and then have them escorted out by force using the authorities (which it seems you have already done); or

2) If you believe that the letter will not scare them to leave, you can simply file eviction NOW without any notice. See here on how to file an eviction in San Francisco. Again, one in your situation may ignore the NOTICE section - this is for 'real' tenants.

If he still does not move out afer the eviction hearing, then you can have them FORCED out by the Sheriff using a writ - see here.

I hope this helps and clarifies. Good luck.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 86628
Experience: Qualified attorney in private practice including business, family, criminal, and real estate issues.
Ely and 3 other Real Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

Unfortunately I do not have the time to evict squatter. I am selling property and we need the bank to appraise it before this bank will foreclose on it.


 


If this person has this, tenant at sufferance right, I wish to know: could we wait for him to go out and while he is not there change the lock? Would this


interrup the legal possession of this apartment and restore our right of possition?


 

Expert:  Ely replied 1 year ago.
Friend,

Thank you for your follow up.

Unfortunately I do not have the time to evict squatter. I am selling property and we need the bank to appraise it before this bank will foreclose on it.

I understand. Know that an eviction may be heard in as fast as 10 days, although of course it depends on the nuances of each matter.

If this person has this, tenant at sufferance right, I wish to know: could we wait for him to go out and while he is not there change the lock? Would this interrup the legal possession of this apartment and restore our right of possition?

No, it would not interrupt their "tenancy at sufferance." Recall that a tenant at sufferance (TIS) has the RIGHT to be evicted. So technically if they are locked out, they could theoretically bring a suit for unlawful eviction against you, although I highly doubt that this would happen given their background. However, if they are in a gang, they are highly unpredictable and may simply decide to break back in. The police no doubt will be called and they may or may not arrest them on damage to the property, depending on the officer's "gut" call on the scene, since the TIS is technically a tenant and would be breaking into their own leased space (again, technically, I know this is absurd).

But given even if they are arrested, they would still damage the property. Should someone in your situation wish to try the lock out but chance them breaking in, or a suit (unlikely), is up to you.

Finally, if they have any belongings, the belongings would need to be put into a storage and while you can charge them for the cost it costs you to hold on to them and then do away with them if the TIS does not pick them up at a certain time, this in itself may also be a headache. Ironically, the eviction+writ may be an easier solution: a quick hearing and the police do all the work for you by forcing them out.

Gentle Reminder: Again, surely you prefer that I be honest in my answer – please remember that rating negatively due to receiving bad news still hurts the expert – it is simply the way that the system is set up. Please use REPLY button to keep chatting, or RATE my answer when we are finished. (You may always ask follow ups free after rating.)
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 86628
Experience: Qualified attorney in private practice including business, family, criminal, and real estate issues.
Ely and 3 other Real Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

If I would follow your answer to evict it will be more than 10 days: this is why: every eviction I had done has been answered by the public defender attorneys, which it results into the tenant staying for at least 3 or 4 months! because now they have an attorney helping them to 'procrastinate' by finding typos, etc]


But if I try the eviction: I do not know this man's name to file the papers, how can I fill the eviction documents without a name?

Expert:  Ely replied 1 year ago.
Hello,

Okay - it is of course your prerogative to decide what to do. I am simply providing information, but the decision is yours alone.

But if I try the eviction: I do not know this man's name to file the papers, how can I fill the eviction documents without a name?

An eviction against a "John Doe" is not uncommon and may be filed like this. The Court is likely to still evict if the individual does not show to Court, and, if they do, then they can be asked their name and the documentation may be updated to reflect the proper name.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 1 year ago.

I appreciate your adivse, if nothingelse it will help me to deal with future 'tenants'.


This is my lucky day: the squatter called me just now! Try to become my tenant but I convinced him to take $150 moving 'bonus' and I will help him to rent a cheaper apartment, if possible. Main event is that he will be leaving now! Thanks again.


Please reply so I can rate your answer


 

Expert:  Ely replied 1 year ago.
Ah, okay. Be careful - individuals like these can always change their mind, so do exercise caution, which I have no doubt you already are. Best of luck.
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 86628
Experience: Qualified attorney in private practice including business, family, criminal, and real estate issues.
Ely and 3 other Real Estate Law Specialists are ready to help you
Expert:  Ely replied 1 year ago.
Thank you for your gratuity.

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