Legal Question in Real Estate Law in California

Re: eviction of tenant declaring bankruptcy

I believe that you may seek possession as long as you do not ask for money damages (rent) which would have accured prior to the date the bankruptcy was filed. I would file the case - the worst that could happen is that the district court judge would do is order an escrow for the rent (if the debtor is still not paying).

Don Darnell 734/544-7676

Re: eviction of tenant declaring bankruptcy

In general, the effect of filing a petition in bankruptcy is to cut off the landlord's right to serve, file or otherwise pursue an unlawful detainer action or eviction, or to recover money owed. The landlord has two choices-- to seek relief from the automatic stay by petitioning the bankruptcy court; alternatively, if the unlawful detainer action has already been filed, he can seek to have the case transferred to the federal bankruptcy court.

If the tenant's lease has expired and he is wrongfully holding over, at least one bankruptcy court has held that the automatic stay does not bar the landlord evicting to regain possession provided no monetary damages are sought. In re Smith (Marquand v. Smith) (CD Cal.1989) 105 BR 50.

So, the answer is essentially no.

Re: eviction of tenant declaring bankruptcy

Check with an attorney that specializes in land- lord tenant law in the jurisdiction in which the property is located. And determine the status of the local bankruptcy court as to the 'automatic stay.'