San Diego Landlord Tenant Lawyers -- Landlord Tenant Dispute FAQs
Q: Why should Landlords and Tenants have a lease reviewed and analyzed by an attorney prior to execution?
A: A lease should be reviewed to ensure it is up-to-date according the latest applicable caselaw and statutes, and certain provisions may be entirely inapplicable or negotiable in whole or in part. At the very least, all provisions should be carefully explained by a qualified real estate attorney and understood by the parties involved.
Q: What is meant by "Summary in Nature" when it refers to eviction in the unlawful detainer process?
A: It simply means that it is an expedited process given a near immediate preference by the Superior Court. An answer to an unlawful detainer complaint must be filed with the court within 5 calendar days. The trial is almost always set within 21 days of a party's request.
Q: Typically, how long does the eviction process take when the issue is limited to non-payment of rent?
A: Inclusive of the required "perfect" 3-day notice, filing an unlawful detainer complaint in Superior Court, personal service of complaint on defendant, filing the "At-Issue Memorandum" requesting trial, conducting trial, requesting a writ of possession and/or a Sheriff's lockout order (necessary for continued refusal to surrender), followed by Sheriff's lockout, the process can take up to 35 days of focused effort by an experienced unlawful detainer attorney. With cooperation or stipulation the process can be more streamlined.
Q: What is a "3-Day Notice to Pay Rent or Quit" and why is it important?
A: It is possible to serve a 3-Day Notice to Pay Rent or Quit the day immediately following the date rent is due, even if the lease grants a grace period without penalty. A "TIME IS OF THE ESSENCE" clause is usually contained in the lease which makes timeframes set forth in the lease exacting. If a tenant has a history of late payments, it is strongly advised that a 3-Day Notice to Pay Rent or Quit be served immediately the day after the rent is due. Within the 3-day period, assuming the Notice was personally served on the tenant, the landlord must accept the rent demanded within the 3 days. After expiration of the 3-Day Notice to Pay Rent or Quit, a landlord has the choice to accept the rent or not and proceed with an unlawful detainer action in the hopes that the tenant's possessory rights can be forfeited. A 3-Day Notice to Pay Rent or Quit must contain specific information or the associated unlawful detainer action is subject to dismissal.
For a residential lease, the 3-Day Notice to Pay Rent or Quit cannot overstate the amount of rent due and it is recommended that late charges are not included. If late charges are not included in the Notice, the landlord does not waive his right to receive the late charges.
For a commercial lease, there are provisions which allow the amount of rent to be overstated in the 3-Day Notice to Pay Rent or Quit within certain parameters.
Q: What can a tenant expect regarding the disposition of the security deposit at the lease end or termination?
A: California has specific laws governing the return of a security deposit. The disposition or utilization of a security deposit must be in writing and provided to the tenant within 21 days of the date of termination or surrender. Landlord's are cautioned to provide written justification for any deductions from the security deposit.
If you are a landlord or tenant in the San Diego area and are currently in a dispute, contact a Landlord Tenant Dispute Attorney in San Diego by calling 858-587-3555 for a consultation or to find out more information. We will be updating our FAQ page on a regular basis so make sure to check often. The attorneys and lawyers of Goode, Hemme and Peterson provide landlords and tenants with solid advice and strong legal representation. |
