Evicting the Tenant At Will In California

Updated 5/17/24

What is a tenant at will?

There are situations where the owner of a rental property may allow a person or family to live in a rental property where there is no rental agreement as to the amount of rent or the duration of the tenancy. Civil Code Section 789 defines under California Law as the permissive use of the rental property without an agreement regarding the amount of rent or the length of tenancy.

Evicting the Tenant At Will In California

Key characteristics of a tenancy at will in California

Indefinite Duration

There is no fixed end date. The tenancy continues as long as both parties agree to it.

Termination Notice

Either party can terminate the tenancy by giving proper notice. In California, the notice period required is usually 30 days if the tenant has lived in the unit for less than one year, and 60 days if the tenant has lived there for one year or more.

Flexibility

This arrangement provides flexibility for both landlords and tenants. The tenant can leave without long-term commitment, and the landlord can regain possession of the property relatively quickly.

Rights and Responsibilities

Even though there is no written lease, both the landlord and tenant have certain rights and responsibilities under California law. For example, the landlord must provide a habitable living environment, and the tenant must pay rent and take care of the property.

How to evict a tenant at will

To terminate this type of tenancy and commence an Unlawful Detainer Action the owner of the rental property must serve the occupant with a 30-Day Notice to Terminate a Tenancy at Will. The Notice may be served by posting it on the rental property and mailing the notice to the occupant by regular or certified mail.

Once the Notice has been served the owner of the rental property must serve an Unlawful Detainer Complaint using the official forms from the State of California paying careful attention to make sure the forms are filled out correctly.

The Summons, Complaint and Prejudgment Claim must be served according to California Law by either personal service, substitute service if the person to be served was not at home, or by obtaining a posting order from the court. The occupant will have five days to file a response to the complaint after the service is completed.

If the occupant fails to file a response to the complaint a Request for Entry of Default/Default Judgment can be filed with the court to obtain possession of the rental property and monetary damages.

After the Request for Default/Default Judgment has been filed and signed by the court a Writ of Possession can be issued which is then taken to the County Sheriff’s Department for Processing. The Sheriff’s Department will post a Notice of Lockout on the rental property giving the occupant the date and time when the Writ of Possession will be enforced. If the tenant fails to move by the date of the lockout the Sheriff’s Department is authorized under California Law to take all steps necessary to remove all the occupants.

If the occupant files an Answer to the Complaint as his/her/its response a Request for a Trial date must be filed with the court. Under California Law the courts have 10 to 20 days from the date the Request for a Trial Date is filed to set a trial date for an Unlawful Detainer matter.

All parties to the case must appear at the trial date to present testimony and documentary evidence to support the claims made in the documents filed with the court.

The owner of the rental property must prove (1) his/her/its ownership interest in the rental property; (2) the approximate date the occupant(s) took possession of the rental property; (3) the lack of an agreement as to rent and length of the permissive use of the rental property; (4) lawful service of the 30-Day Notice to Quit; and (5) the fair daily rental value of the rental property.

If the owner of the rental property proves these facts by a preponderance of the evidence the owner of the rental property will be awarded a judgment for possession of the rental property and monetary damages equaling the daily rental value from the date of the expiration of the Notice to the date of Judgment.

As stated above once the judgment is entered a Writ of Possession will be issued and served on the occupants to enforce the judgment.

This type of Unlawful Detainer Action can be very useful to the owner of real property to evict someone who has been living in the rental property with the permission of the owner without paying rent. However, the steps outlined above must be strictly followed.