Legal Question in Real Estate Law in California
I live in CA and own a 1/2 acre with two homes on it. We live in the front house and our tenant lives in the other house on the same property. Our tenant has lived on the property for about 8-9 years. He use to be a good friend of the family and when he lost his place we let him stay with us to get back on his feet. Over the course of the last few years he has proved to quite a nuisance. Everything from loud music, people coming over at all times of the night, getting drunk, violent and biligerant towards us, the list goes on. Quite frankly, we want our privacy and property back and want him out. We realize he has rights and want to follow the legal process to get him out of here. We have never had a lease or rental agreement/contract with him during the 8-9 years he has been here. Nor have we ever asked him to pay rent. We also suspect he has another person living with him in the house that we did not authorize to move in there. I served him with a 60 day eviction notice and he is threatening to destroy the house and have it condemned. He is also a very vindictive person and I'm worried about my family's safety. In my situation, am I following the right procedure to evict him by serving him a 60 day eviction notice then following up with an Unlawful Detainer Lawsuit if he doesn't vacate within the 60 days. Is there an easier way to get him out? What rights does he have if we never had a contract/lease/agreement with him and have never accepted rent from him? I also wanted to note that when I served him I mentioned that we would like to get someone on the property that would pay rent. If you were me what would be your course of action? Thank you in advance.
4 Answers from Attorneys
Send him a 30-day notice which is all that is required. If he threatens waste to the property, call the police or file for a restraining order.
Hmmm, I'm not sure about the 30-day stuff. If he is a tenant, he is entitled to 60 days' notice. If he is a guest, he is not entitled to notice nor would an unlawful detainer suit be appropriate.
I'd stick with the 60-dat notice to be on the safe side, and have a discussion with the police or sheriff with regard to your personal safety and property-damage concerns.
A restraining order may have its place, but nut cases tend to ignore them, especially when it affects access to where they've been living. Have friends and neighbors assist you in watching the property and giving you support.
A lease is not necessary to create a landlord tenant relationship. All that is necessary is the payment and acceptance of rent by the landlord. If you have never accepted rent, he is not a tenant, but your constant referral to him as a tenant makes me suspicious of the facts that you have presented.
I agree with Mr. Whipple's cautious response, but a more aggressive approach, if this person is truly not a tenant, is to bring a forcible detainer action.
It is arguable whether or not there is a landlord tenant relationship. I have seen a tenant removed with a restraining order, but that can result in a wrongful eviction lawsuit. If you want to invest in my time, I could try to help. There are no guarantees either way. I think if he is notified that the authorities are notified that he has threatened to do something, maybe he will decide not to risk jail time in addition to the eviction. If you need to do a tro because you think he may snap, and then then deal with the risk of a lawsuit later, then I can help you with that as well.
Best,
Daniel Bakondi, Esq.
415-450-0424
The Law Office of Daniel Bakondi, APLC
870 Market Street, Suite 1161
San Francisco CA 94102
http://www.danielbakondi.com
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