Both landowners and tenants agree to abide to the terms and conditions of the rental agreement when the tenancy begins. Normally the rental agreement warrants for the payment of rent within the 1st or 5th of every month. There is an implied warranty of habitability and the tenant occupies the property for the quiet enjoyment. If the parties do not abide to the terms of the agreement, the parties are in breach of the contract. Then it has to be determined whether there is a minor breach or a major breach depending upon the facts.
For example if the tenant does not pay the rent within the specified time, the tenant is in breach of the rental agreement. The landlord may proceed with the provisional remedy of Unlawful Detainer/Eviction Proceeding to repossess the property.
The Unlawful Detainer/Eviction statutes were enacted to provide an adequate, expeditious and summary procedure for regaining possession of real property wrongfully withheld by a tenant. The rights and remedies afforded a landlord by the statutory provisions are given in lieu of his common law rights and remedies which included the right to enter and expel the tenant by force. In order to satisfy the due process fundamental requirements of law, the landlord has to strictly follow the statutory procedure. Otherwise the tenant can challenge the Unlawful Detainer proceedings on technicalities and the process has to be done all over again and more time is wasted.
The Unlawful Detainer proceeding starts with serving a 3 day Notice to the tenant. After service, the tenant has to pay the rent within the 3 days or to quit the premises. If the rent is not paid within the three days and the tenant continues to occupy the premises unlawfully, the landlord can file an Unlawful Detainer Complaint in the Municipal Court for past due rent and forfeiture of the property. The tenant is required to file an Answer to the Complaint within 5 days of the service of the Summons and Complaint, to protect his/her rights. If the tenant files an Answer to the Complaint the court will schedule a hearing date without much delay. After listening to the testimony of both parties, if the court determines that the tenant is in breach, the court will render a judgment in favor of the landlord.
Information in this column should not be construed as legal advice and does not
constitute an engagement of the Law Office of Raji Rajan. The information contained
herein is of a general nature and may not apply to any particular set of facts or circumstances.
If you require specific advice on any legal issue, you should consult an attorney.
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