Residential landlords seeking to remove or evict a problem tenant in California are generally aware that notification must be provided before an unlawful detainer action can proceed. However, some landlords may fail to take these actions and expose themselves or their property management company to potential legal liability while opening the door to a number of defenses by the tenant. A landlord tenant lawyer of the NewPoint Law group can assist residential landlords handle evictions and, if necessary, apply for posting orders to ensure that notification is provided.
Is an Unlawful Detainer Action a Lawsuit?
An unlawful detainer action is a type of lawsuit, and as with any lawsuit, basic due process is required. This means a party to a lawsuit must receive notice of the lawsuit in order to allow for time to respond. The law generally requires that notice of a lawsuit must be presented through personal service. A process server or some person who is not a party to the lawsuit must physically present a copy of the lawsuit (summons and complaint) to the other party to the lawsuit.
It is important to note that there are many forms of notice available and that these notices provide varying durations of notification. Common period of notification include 3-day notice, 30-day notice, 60-day notice, and greater than 60 days of notice. The appropriate form of notice may turn ion the length of the tenancy and factors relating to the reason for the eviction. Landlords must ensure that proper notice is served on the client or the landlord prior to proceeding. The failure to do so will result in, at minimum, the landlord having to restart the process.
What Happens When Service Cannot Be Made Because the Tenant Is Evading Service?
Many potential clients are often concerned that they will face a situation where he or she acting as the landlord files the unlawful detainer lawsuit but is unable to have the tenant personally served because the tenant is avoiding service of the summons and complaint. In light of how providing notification is an essential step in an unlawful detainer action, a landlord’s instincts are correct that this can present an obstacle to the timely eviction of a residential tenant.
It is the custom and practice that at least three attempts must be made on three different days to personally serve the tenant at the residential unit. If it is known where the tenant works, it is also custom and practice to attempt service at his or her place of employment. If these reasonable efforts do not result in a successful personal service, the landlord must apply to the court to obtain a posting order. A posting order permits a party in litigation to provide notice by affixing the Summons & Complaint to the front door of the residence along with a mailing.
In order for a court to authorize a posting order, the application must set forth, through admissible evidence, that reasonable attempts were made to serve the tenant with the summons and complaint. If this burden is satisfied, the court will then issue a posting order which authorizes the landlord to post a copy of the summons and complaint on the front door, and mail a copy of the summons and complaint to the tenant at the tenant’s last known address. This process, known as “Nail and Mail,” has the effect of providing legally valid notification to the tenant. However, to balance the risk of abuse, it also provides the tenant with an additional 15 days to file an answer to the complaint.
Work with a California Unlawful Detainer Lawyer
A Sacramento real estate attorney at NewPoint Law Group, LLP, LLP has the knowledgeable and experience in landlord-tenant matters and disputes. To start the process to gain possession of your property as soon as legally possible, schedule a confidential legal consultation today by calling 800-358-0305 or contact us online today. We have offices conveniently located in Folsom and Roseville, California.
Be sure to check out our Unlawful Retainer Blog Series for further information:
Part One: What Is an Unlawful Detainer?
