Civil Litigation Landlord/Tenant Law Legal Topics Real Property Law

To Evict or Not to Evict?

A client comes to you and wants to evict his or her tenant. Before you start drawing up the unlawful detainer complaint, you need to understand why your client wants to evict — is it a financial decision or an emotional one? Does it make sense financially? Is it because your client wants to live in the property?

The decision whether to bring an unlawful detainer action to evict a tenant should generally be a financial one, not an emotional one. But how do you figure our whether your client is asking you to evict a tenant for the right reasons?

First, consider your client’s stated reasons for the eviction —  are they financial reasons or are they anger or frustration with the tenant? Always be sure that the landlord’s motive does not violate state or federal law (e.g., retaliatory eviction, discrimination) or local just-cause or rent control ordinances.

If the predominant reason for the eviction seems to be emotional, or even when it is financial, analyze whether your client could remedy the problems with the tenant without litigation. For example, maybe this is a proper case for a meeting between parties to explain positions and explore informal resolution. Mediation can be a very useful tool in landlord/tenant disputes.

If you are sure that your client is evicting for purely sound financial reasons, and mediation would not be appropriate, you need to look at the economics of the situation and determine whether it makes economic sense to litigate.

In assessing the costs and benefits of an unlawful detainer action, you need to:

  1. Review the anticipated expenses of an unlawful detainer proceeding, including the costs of litigation and execution of the judgment (which may be difficult), the landlord’s attorney fees and, if the lease allows fees to the prevailing party, whether recovery of fees from the tenant is likely;
  2. Ask your client about facts or circumstances that might support potential tenant defenses to an unlawful detainer action and determine their likelihood of being proved; and
  3. Estimate the overall likelihood of success in eviction and the monetary value of probable gains.

If the reason for the eviction is because your client wants to live there, check for any eviction-control ordinances before taking action.

Don’t forget about any risks to your client if the unlawful detainer action is unsuccessful. These include the risk of having to pay the tenant’s attorneys fees and costs if they are provided for in a written agreement and the tenant prevails, and, in rent-controlled jurisdictions, the potential that the tenant might file an “attempted wrongful eviction” action against the landlord.

An eviction action after a foreclosure sale presents a trap for the unwary. If eviction is contemplated against a tenant of the former owner of foreclosed rental property, or against a former owner of commercial or residential property, specially enacted rules govern pre-litigation notices, including a preemptive federal law for residential leases.

All of these issues, as well as everything else you need to know about bringing an unlawful detainer action, are covered in CEB’s California Landlord-Tenant Practice. For step-by-step assistance with bringing an action, go to our Action Guide on Handling Unlawful Detainers.

© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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