Evictions can be a complex process, especially when unknown occupants are involved. In California, landlords must follow specific procedures to address these situations. Understanding the rights of unknown occupants is crucial for both landlords and tenants.
Unknown occupants are individuals who reside in a rental property but are not listed on the lease agreement. These occupants may include family members, friends, or subtenants. Landlords must identify these individuals and follow legal protocols to evict them.
Informing Occupants NOT Named in the Eviction Lawsuit of their Rights
People who are not named as tenants in the rental agreement or lease sometimes move into a rental unit before the landlord files the unlawful detainer (eviction) lawsuit. The landlord may not know that these people (called “occupants”) are living in the rental unit, and therefore may not name - or even know - them as defendants in the summons and complaint. As a result, these occupants are not named in the resulting writ of possession if the landlord wins the unlawful detainer action. Thus, a sheriff who comes to enforce the writ of possession cannot lawfully evict occupants found whose name does not appear on the writ of possession and who claim to have lived in the unit since before the unlawful detainer lawsuit was filed.
The landlord can take steps to avoid this result. The landlord can instruct the process server who serves the summons and complaint (eviction lawsuit) on the named defendants to ask whether there are other occupants living in the unit who have not been named as defendants. If there are, the person serving the summons and complaint can serve each of the so-called “unnamed occupants” with a blank Prejudgment Claim of Right to Possession form and an extra copy of the summons and complaint.
The Prejudgment Claim of Right to Possession
Unknown occupants must act quickly if they wish to contest the eviction. These occupants then have 10 days from the date they are served with a copy of the summons and complaint to file the blank Prejudgment Claim of Right to Possession form that was handed to them with the Clerk of Court. In doing so, the occupants must also pay the clerk the required filing fee or file an “Application for Waiver of Court Fees and Costs” (if they are eligible). Any unnamed occupant who does not file a Prejudgment Claim of Right to Possession form with the Court Clerk can then be evicted.
An unnamed occupant who files a Prejudgment Claim of Right to Possession form automatically becomes a defendant in the unlawful detainer lawsuit, and must file an answer to the complaint within five days after filing the form. If answers to the landlord's eviction lawsuit are filed, the court will hold a trial where it will eventually rule on the occupants' (and the other defendants') defense(s) to the eviction. If the landlord wins, the occupant cannot delay the eviction, whether or not the occupant is eventually named in the writ of possession issued by the court.
During the hearing, the court will consider the evidence presented by both the landlord and the unknown occupants. The court may grant or deny the claim based on the information provided. If the claim is granted, the eviction process may be delayed, halted, or restarted. If the court denies the unknown occupant's claim, the landlord can proceed with the eviction. This involves obtaining a writ of possession and working with law enforcement to remove the occupants from the property.
Occupants Not Named in Writ of Possession
The landlord sometimes does not serve a Prejudgment Claim of Right to Possession form on the unnamed occupants when the unlawful detainer complaint is served. Thus, it is common for landlords to reach the end of their eviction lawsuit against named tenants, only to obtain a Writ of Possession for their property against named defendants in the case. When the sheriff arrives to enforce the writ of possession in such a case, an occupant whose name does not appear on the writ of possession, and who claims to have a right of possession, may fill out a Claim of Right to Possession form and give it to the sheriff. The sheriff must then stop the eviction of that occupant, and must give the occupant a copy of the completed form or a receipt for it.
Within two business days after completing the form and giving it to the sheriff, the occupant must file it with the Court Clerk and deliver to the court an amount equal to 15 days’ rent for the rental unit (the landlord's writ of possession should state a daily rental value of the rental unit).
Five to 15 days after the occupant has paid the filing fee (or has filed a request for waiver of the fee), filed a Claim of Right to Possession form, and deposited an amount equal to 15 days’ rent with the court, the court will hold a hearing. If the occupant does not deposit the 15 days’ rent, the court will hold the hearing within five days. At the hearing, the court will decide whether or not the occupant has a valid claim to possession. If the court decides that the occupant’s claim to possession is valid, the amount of rent deposited will be returned to the occupant. The court will then order further proceedings, as appropriate to the case (for example, the occupant may be given five days to answer the landlord’s complaint).
If the court finds that the occupant’s claim to possession is not valid, an amount equal to the daily rent for each day the eviction was delayed will be subtracted from the rent that is returned to the occupant, and the sheriff or marshal will continue with the eviction.
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Landlords must follow all legal procedures to ensure a smooth eviction process. Failure to comply with these requirements can result in delays and additional costs. Consulting with a legal professional can help landlords navigate these challenges.
Contact Khalil Law Corporation for all your eviction needs today!
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