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Ask CalAttorney2 Your Own Question
CalAttorney2, Attorney
Category: Landlord-Tenant
Satisfied Customers: 10244
Experience:  I am a civil litigation attorney with experience representing both landlords and tenants in residential and commercial property disputes.
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Our landlord says we did not pay Oct and Nov 2014 rent payments

Customer Question

Our landlord says we did not pay Oct and Nov 2014 rent payments and summoned us to appear in court on Dec 18, 2014. MY fiance appeared but no one representing the landlord appeared. We did pay our rent for those 3 months and oon time. My fiance produced rent receipts and cancelled checks for both months to the jjudge. The judge said their claim was ridiculous and a waste of the court's time and that he was going to talk to their attorney. Nothing more hjIhad been heard about tDec his matter. We have continued to pay our rent each month on time as usual. My fiance went in to pay the rent this month and they refused to take it. On Monday, 6/29, we were served with a 48-hour notice to vacate the premises. Can you help us at all? This leaves us living in our vehicle with our 2 cats. I am 100% disabled.
Submitted: 2 years ago.
Category: Landlord-Tenant
Expert:  CalAttorney2 replied 2 years ago.
Just as with the prior unlawful detainer, it appears that the landlord is acting unreasonably and abusing the court process.The landlord cannot force you out of the unit without going through the unlawful detainer process, so you can simply ignore their 48 hour notice, send a written letter "confirming" their refusal to accept rent as offered, (this is only to document your effort to pay) and enclosing your check by US Mail.Keep a copy of this document.Below is the court process (just as in your earlier action) that the landlord must go through. The landlord cannot use "self help measures" such as changing the locks, cutting off utilities, or any other sort of bullying tactics to force you to leave. If they do, you can file your own lawsuit against the landlord for "illegal eviction" (contact your local, city or county, bar association for referrals to housing clinics, most counties have clinics to help tenants in these types of situations).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").