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CalAttorney2
CalAttorney2, Lawyer
Category: Real Estate Law
Satisfied Customers: 10244
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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I need advise, we are currently couple months late with

Customer Question

I need advise, we are currently couple months late with rent, business has been very slow due to tourist season ending, but we are trying to work this out and get back on track. We also live above this business. is there anything we can do to not get evicted? The landlord seems really uncaring and we understand but its not just losing our business its losing our home.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  CalAttorney2 replied 1 year ago.

Dear Customer,

Unfortunately, if you are not paying your rent, the landlord has a right to proceed with the eviction process (I am including an overview of how this works below).

You can try negotiating with him regarding this - but if that fails, try using a mediator, contact your local bar association for referrals, and see if a third party neutral can help you reach a "mutually agreeable resolution" - often showing a landlord the benefits of allowing you to remain (continuity of tenancy, promise of paying, concessions with lease, etc. as compared to a vacancy, the cost and time consumption of the eviction process, as well as further lost income) can help persuade them to make an allowance for late rent.

But do understand the situation you are in - your landlord has no obligation to make such a concession, so you must make an offer that is appealing to them on a business level.

  • 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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