Legal Question in Real Estate Law in California

I have been served with a writ of possession and have 5 days to get out. The landlord has asked me to pay what I can. If I pay give him some money, can I still be evicted by the sheriff on the 5th day?


Asked on 10/08/09, 8:37 pm

1 Answer from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

The writ of possession probably resulted from the landlord's successful unlawful detainer suit. When landlords serve notices to pay or quit and then serve unlawful detainer complaints, the notices and complaint at some point should specify whether the landlord is declaring (or asking the court to find) that there has been a forfeiture of the lease by the tenant. Look at Box 7d on the Judicial Council unlawful detainer complaint form. When there is a forfeiture, the tenant's lease is ended by the judgment in the suit, and the tenant has somewhat limited rights to pay up and get reinstated. Those limited rights are rather complex and you should ask the unlawful detainer assistant at the courthouse if this may apply. If the landlord did not declare a forfeiture or termination of the lease in his notice and complaint, refer to Code of Civil Procedure section 1174, which provides ground rules for reinstatement if you pay what's due promptly. If there has been a forfeiture, read CCP section 1179 covering relief from forfeiture. I'm afraid a part payment is not likely to be a ground for reinstatement of your lease, although even that is provided for in 1179 under limited circumstances.

All of the foregoing discusses what the tenant might be able to do to get reinstated whether the landlord cooperates or not. Of course, to the extent the landlord will cooperate, almost anything is possible, but get it in writing. Also note that if you give the landlord money now, he is entitled to apply it to any money judgment he got against you before applying it to current rent.

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Answered on 10/09/09, 2:17 am


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