FAQ - California Evictions

What happens after foreclosure?  What type of Notice is served?  Does the prior owner have any rights?

CALIFORNIA STATE LAW PROTECTS TENANTS AFTER FORRECLOSURE 

     During the Great Recession, several states enacted laws to offer protections to residential tenants after foreclosure.  In California, CCP §1161b lists the requirements implemented to protect tenants.   The rules are highly specific and technical.   

     To determine if an owner after foreclosure may serve notice, and what kind of notice must be used, the new owner should:               

     (a) First, attempt to determine who is in  possession of the premises, and If they are tenants, and If so, the terms of their tenancy; and,                                                                                        

     (b) If possible, obtain a copy of the rental  agreement. If any.

PURCHASER MUST RECORD DEED BEFORE SERVING NOTICE TO QUIT

     The California Supreme Court held that a purchaser at foreclosure sale must record the deed to perfect title (called a Tustee Deed Upon Sale), before serving a Notice to Quit on a tenant under CCP §1161a(b). Dr. Leevil, LLC v Westlake Health Care Ctr. (2018) 6 C5th 474, 479. 

California Civil Code §2924h(c) instructs us that the deed of sale is perfected retroactively as long as the deed is recorded within 21 days after the sale. But title perfection comes only after the deed is recorded and is not retroactive. 

The San Otego Superior Court Appellate Division made a similar ruling in a residential eviction after foreclosure (See U.S. Fin., LP. v McLItus (2016) 6 CA5th Supp 1, 4 (deed must have been recorded before purchaser serves notice to quit).

FIXED-TERM LEASES SURVIVE FORECLOSURE IN CALIFORNIA

     If residential tenant entered into a bona fide fixed-term lease before the foreclosure sale's transfer of title, the lease survives the foreclosure and tenant has the right to occupy the premises until the end of the lease term (except that tenancy may be terminated on 90 days' written notice to quit on four limited conditions). CCP §1161b(b). 

Compare to tenant with month-to-month or periodic agreement, who must vacate after service of 90-day written notice to quit (CCP §1161b(a)), and CC §2924(n), which  requires a legal owner of the property to comply with applicable law regarding displacement of tenants.  Additional protections may apply to tenants after foreclosure under subsidized leases, or local rent stabilization or just cause ordinances.   

NOTICE: "I AM THE NEW OWNER"

     Once the new owner determines who is in possession of the premises, they have one more step that is required before they serve a notice to quit.  

Pursuant to  Civil Code §1962(c) , the new owner must provide  provide the tenant "written notice" within 15 days after becoming the owner or manager.  The notice identifies who the new owner is and also their contact information.  Failure to timely comply can prevent the new owner or manager from evicting the tenant for nonpayment of rent that accrued during the period of noncompliance. 

The information required includes name, telephone number, and address of the person to whom rent should be paid, to whom notices, and service of process may be delivered, and who Is authorized to manage the premises.  Landlords may comply with subsection (c) by placing the documents In conspicuous areas of the property, CC §1962.5.

BOTTOM LINE

     If you are the prior owner that still remains in possession, you still have rights.  The purchaser has now become, technically speaking, your new landlord.   Before they serve an unlawful detainer seeking to evict you, you should note that they must provide you (1) notice identifying their identity and contact information within 15 days after purchasing the property, and (2) if you are served a Notice to Quit, you should see if the new owner recorded the Trustee Deed Upon Sale with the local County Clerk-Registrar's Office.

[Last updated May 5, 2024]

     The Tenant Rights Act (TRA) went into effect in January 2020 .  Pursuant to the TRA, there  are two types of evictions in California: "at-fault just cause" evictions and "no-fault cause" evictions.   The law requires landlords to cite a just cause for an eviction when serving a notice to a tenant.  Just cause eviction, and it exists to protect tenants from being wrongfully evicted by their landlord.  What is just cause?

JUST CAUSE EVICTION LAW

     The eviction controls, which primarily require "just cause" for an eviction, are detailed in California Civil Code §1946.2.  The code section is very lengthy and complex.  Despite any other law, CC §1946.2(a) provides that after a tenant has continuously and lawfully occupied a residential property for 12 months, the owner of the property cannot terminate the tenancy without “just cause,” which must be stated in the written notice to terminate. 

If any additional adult tenants are added to the lease before an existing tenant has so occupied the property for 24 months, then §1946.2(a) will only apply if either:

     (1) all of the tenants have 

     continuously and lawfully occupied 

     the property for 12 months or 

     more,  or 

     (2) one or more tenants have so 

     occupied the property for 24 

     months or more. 

Under CC  §1946.2(b), a "just cause" termination can be based on a reason that is either “at fault" or "no fault." 

AT-FAULT JUST CAUSE DEFINED 

     Under CC §1946.2(b)(1), the term "just cause" includes at-fault cause, which Is any of the following conduct or activity of the tenant:

o Defaulting in the payment of rent

o Breaching a material term of the lease as described in CCP §1161(4), including but not limited to violation of the lease after being given a written notice to correct it.

o Maintaining, committing, or permitting the maintenance or commission of a nuisance as described in CCP §1161(4).

o Committing waste as described in CCP §1161(4).

o If the tenant had a written lease that terminated on or after January 1, 2020, refusing to execute a written extension or renewal of the lease, after a written request from the owner, for an additional term of similar duration with similar provisions, provided that those provisions do not violate CC §1946.2 or any other law.

o Criminal activity by the tenant on the property, including any common areas, or any criminal activity or criminal threat, as defined in Penal Code §422(a), on or off the property. That is directed at any owner or agent of the owner of the property.

o Assigning or subletting the premises in violation of the lease, as described in CCP §1161(4). 

o Refusing to allow the owner to enter the property as authorized by CC §§1101.5 and 1954 and Health & SC §§13113.7 and 17926.1.

o Using the premises for an unlawful purpose as described in CCP §1161(4).

o An employee’s agent's, or licensee’s failure to vacate the residential property after their termination as an employee, agent, or a licensee as described in CCP §1161(1).

o Failing to deliver possession of the property (1) after giving the owner written notice as provided in CC §1946, of the tenant's intention to terminate the tenancy; or (2) alter making a written offer to surrender that is accepted in writing by the landlord, but fails to deliver possession at the specified time, as described in CCP §1161(5).

 TENANT’S RIGHT TO CURE 

     Before an owner issue a notice to terminate a tenancy because of an at-fault just cause that is a curable lease violation, the owner must first give notice of the violation to the tenant with an opportunity to cure under CCP §1161(3). If the violation is not cured within the period stated in the notice, then a 3-day Notice to Quit without an opportunity to cure may afterward be served to terminate the tenancy.

If you are facing eviction and you recieve a Notice to Quit, read the contents of that notice carefully, because the owner must serve you with a 3-day written notice to cure for any of the “at fault” reasons listed above before moving forward with the eviction.

NO-FAULT JUST CAUSE

     In the case of No-Fault Just Cause evictions, California requires the owner to provide the tenant with a relocation assistance payment (equal to one month’s rent) OR agree to waive the final month’s rent.  The landlord must give the tenant notice of the tenant’s right to relocation assistance or rent waiver in writing. Failure to comply with this renders the termination notice void  See article on No-Fault Cause Evictions and  Relocation Assistance. 

[Last updated May 5, 2024]

      The the Tenant Protection Act (TPA) places limits on annual rent increases (Cal. Civ. C. § 1947.12) and restricts the types of allowable evictions in residential rental properties (Civil Code, § 1946.2).  In Part 1, we will discuss the rental cps imposed by this new statute.

Throughout all of California, a maximum amount an owner may increase a residential tenant's rent in a 12-month period. The cap is 5% plus inflation, not to exceed 10%. 

WHO MUST COMPLY WITH THE TPA AND WHAT TYPES OF DWELLINGS ARE EXEMPT? 

     Most residential landlords and property managers must comply with the TPA. Those who are exempted from the TPA are:

(1) NEW HOUSING: Housing that has been issued a certificate of occupancy within the previous 15 years.

(2) DUPLEX: A duplex (defined as a single structure divided into two dwelling units) in which the owner occupies one of the units at the commencement of and throughout the tenancy.

(3) SINGLE-FAMILY RESIDENCE: A single-family residential property that meets two criteria:

     (a) The owner is not a corporation, not an LLC with at least one owner who is a corporation, and not a real estate investment trust {REITI; AND,

     (b) The owner gives their tenant a legally required notice of this exemption.

Other exempt dwellings include:

(4) DORMITORIES: Dorms owned and operated by institutions of higher education other schools.

(5) RESTRICTED: Units restricted by deed, regulatory restriction, or other recorded document as affordable housing for very low, low, or moderate-income households, or that are subject to an agreement providing housing subsidies for affordable housing for those households.

NOTE: Individuals, partnerships, individual co-owners, trusts, and LLCs with no corporate owners, all qualify for the exemption [see Civil Code, §§ 1946.2(a), (e); 1947.12(e)].

DO LOCAL COUNTY RENT CONTROL ORDINANCES STILL APPLY?

The TPA does not apply if a city or county ordinance limits rent increases in an amount that is less than that authorized by the TPA.  Otherwise, is the ordinance limits rent increases in an amount that is less than the TPA, then the TPA applies.

DOES THE TPA LIMIT THE INITIAL AMOUNT OF RENT I CAN CHARGE A TENANT?

No.  The initial rental rate charged a new tenant is not subject to the Rent Cap in the TPA.  The TPA only applies to tenants already domiciled in the dwelling.

[Last updated May 27, 2024]

     The Tenant Rights Act (TRA) , now codified in the California Civil Code until 2030, created the 'No-Fault Just Cause ' eviction.   For tenants that have lawfully occupied the residential property for 12 months or more, the landlord is prohibited from ending the tenancy without “just cause.”  What about those situations where there is no fault?  

Now we are dealing with the second type of just cause called “no fault.” It is called no-fault because is has nothing to do with the tenant's failure or refusal to comply with the lease or other duty imposed by law.   With a No-Fault Just Cause eviction, the basis for termination of the lease is not within the tenants’ control.

 NO-FAULT JUST CAUSE  

Under CC §1946.2(b)(2), the term "just cause" also Includes No-Fault Just Cause, which is any of the following reasons for termination:

o (A) The intent to occupy the residential real property by the owner or their spouse, domestic partner, children, grandchildren, parents, or grandparents. For leases entered into on or after July 1, 2020, this just cause item will apply only If (1) the tenant agrees in writing to the termination or (2) a provision of the lease allows the owner to terminate the tease if the owner, or their spouse, domestic partner, children, grandchildren, parents, or grandparents, unilaterally decides to occupy the residential real property. Addition of a such a lease provision to a new or renewed rental agreement or fixed-term lease constitutes a similar provision for purposes of Civil Code §1946.2(b)(1)(E).

o (B) Withdrawal of the residential real property from the rental market.

o (C) The owner complies with (1) an order issued by a government agency or court relating to habitability that necessitates vacating the property or requiring that the occupants vacate the property, or. (2) a local ordinance that requires vacating the property. If it is determined by any government agency or court that the tenant is at fault for the condition or conditions triggering the order or need to vacate, the tenant will not be entitled to relocation assistance as required in Civil Code §19462(d)(3).

o The owner's intent is to demolish or substantially remodel the property. The term "substantially remodel" means the replacement or substantial modification of any structural, electrical, plumbing, or mechanical system that requires a permit from a governmental agency, or the abatement of hazardous materials, including lead-based paint, mold, or asbestos, in accordance with applicable federal, state, and local laws. that cannot be reasonably accomplished in a safe manner with the tenant in place and that requires the tenant to vacate the property for at least 30 days. Cosmetic improvements alone, including painting, decorating, and minor repairs, or other work that can be performed safely without having the residential real property vacated, do not qualify as substantial rehabilitation.

Any one of the reasons set forth above, (A) - (C), constitute a no-fault reason and the displaced tenant can claim they are permanently displaced.

RELOCATION ASSISTANCE FOR 

NO-FAULT JUST CAUSE EVICTIONS  

     Relocation assistance is a benefit by which a landlord may be required to provide tenants who are being permanently displaced from their units due to no fault of their own.  A tenant is permanently displaced if they are evicted for a no-fault reason such as

If an owner of residential property Issues a termination notice for a tenancy protected by the No-Fault Just Cause standard In Civil Code §1946.2 (b)(2), the tenant's income, the owner must (at the owner's option) either: 

     (1) Assist the tenant in relocating by 

     providing a direct payment to the 

     tenant as described in Civil Code 

     §1946.2(d)(3)or 

     (2) Waive in writing the payment of  

     rent for the final month of the   

     tenancy before that rent becomes 

     due. 

Under Civil Code §1946.2(d)(2) if an owner issues a notice to terminate a tenancy for No-Fault Just Cause, the owner must notify the tenant of the right to relocation assistance or a rent waiver. If the owner elects to waive the rent for the final month of the tenancy, the notice must state the amount of rent waived and that no rent Is due for the final month. 

The amount of relocation assistance or rent waiver must equal one month's rent that was in effect when the owner issued the termination notice, and relocation assistance must be provided within 15 calendar days of service of the notice. Civil Code §1946.2(d)(3)(A). 

If a tenant fails to vacate after expiration of the termination notice, the actual amount of any relocation assistance or rent waiver Pald to the tenant will be recoverable as damages in an action to recover possession. Civil Code §1946.2(d)(3)(B).  The required relocation assistance or rent waiver must be credited against any other relocation assistance required by any other law. Civil Code §1946.2(d)(3)(C), 

An owner's failure to strictly comply with the relocation assistance or rent waiver requirements in §1946.2(d) renders the notice of termination void (Civil Code §1946.2(d)(4)).

[Last updated May 5, 2024]

     All residential leases in California have an implied Warranty of Habitability (WOH).  What exactly is the WOH?  How does it work in the context of an unlawful detainer?  What can the tenant do if the implied WOH is breached by the landlord?

The WOH is defined by statute and caselaw. The primary statute is Cal. Civil Code §1941 which states that 

a residential dwelling unit “shall be deemed” to be “untenantable” if it (1) “substantially lacks” any of the “affirmative standard characteristics” prescribed under §1941 ( Civ.C. § 1941.1). The WOH also extends to all common areas, including hallways, stairways, and the common grounds  

Only Available as a Defense in Evictions Based on Non-Payment of Rent 

     Californians should note that the WOH can only be raised (or pled) as a defense to an unlawful detainer action.  Moreover, the WOH defense is only available if the eviction is based on nonpayment of rent.  If the eviction is based on an alternate theory (e.g., the landlord is taking the house of the rental market), then the WOH cannot be pled as a defense.

If the court finds a residential dwelling is untenantable, this could constitute as a breach of the lease agreement.  However, to be effective as a defense, the court must find that a 'substantial breach' occurred.  

A substantial breach is the failure of the landlord to comply with housing codes which materially affect the tenant’s health and safety. This is usually a high bar for the tenant to prove and usually cannot be done by the tenant’s testimony.

What Are The Main Characteristics of Tenability:

(1) Weather protection: Effective waterproofing and weather protection of the roof, exterior walls, windows and doors

(2) Plumbing and gas: Plumbing and gas facilities that conform to state and local law at the time of installation, maintained in good working order [Civ.C. § 1941.1(a)(2)].

(3) Water: A water supply that produces hot and cold running water and that is approved under applicable law [Civ.C. § 1941.1(a)(3)];

(4) Heating: Heat that conforms with applicable law at the time of installation, maintained in good working order [Civ.C. § 1941.1(a)(4)]

(5) Electricity: An electrical system, including lighting, wiring and equipment, which conforms with applicable law at the time of installation, maintained in good working order [Civ.C. § 1941.1(a)(5)]

(6) Clean and sanitary premises: Building, grounds that, at the inception of and during the rental period, are clean, sanitary and free from all accumulations of debris, filth, garbage, rodents and vermin [Civ.C. § 1941.1(a)(6)].

(7) Trash facilities: An adequate number of appropriate garbage and rubbish receptacles, kept clean and in good repair at all times, beginning with inception of the rental period. [Civ.C. § 1941.1(a)(7)]

(8) Floors, stairways and railings maintained in good repair. [Civ.C. § 1941.1(a)(8)].

What Happens When the Court Finds There is a Substantial Breach of the WOH?

     If the court finds a substantial breach of the WOH has occurred, then it must determine the reasonable rental value of the tenant’s apartment with the housing code violations to the date of trial. 

In addition, the court must deny the eviction request if the tenant pays the back rent, usually within five days. The judge must award the tenant costs and, if applicable, attorney fees.

However, if the court finds that no substantial breach has occurred, then the landlord is entitled to evict if she failed to pay the rent, granted judgment and determined to be the prevailing party. The court may award court costs and attorney fees.

[Last updated May 20, 2024]