An eviction is fraught with challenges for everyone involved, including the landlord. If something necessitates a removal, it should be the last resort for a property owner at the end of their rope. But evictions are sometimes necessary, and landlords must understand the laws and legal processes to use the system well.
While the eviction process has its own rules, what happens when a tenant appeals the notice of eviction?
Understanding the Eviction Appeal Process
The eviction appeal process varies by state. In California, the tenant can first appeal the cause for the eviction. That makes documentation of the issues leading to the eviction critical – first, to help the tenant understand why they are being evicted, and second, to cover your bases under the law.
California landlords must provide the tenant with written notice of the eviction date and the reasons for the action. Under the law, the tenant has several days to respond to the eviction notice. If the tenant is evicted due to non-payment of rent, they can pay everything owed within those five days. Since the landlord filed legal paperwork to start the eviction process, the tenant must also pay the back rent to the court clerk handling the case.
According to NOLO, there are four types of eviction notices in California, and each has their own set of rules:
- Three-day rent due notice. This tells the tenant they must pay up in three days or move out.
- Three-day cure notice. This gives the tenant three days to fix a violation of the lease—or move out.
- Three-day unconditional quit notice. This is a flat “get out in three days” notification.
- 30- or 60-day quit notice. The 30-day quit eviction notice is for month-to-month tenants that have lived in the rental for less than a year. The 60-day is for month-to-month tenants who have lived in the unit for more than a year. The number is the designated days allowed for the tenant to move out.
What you don’t want is the implication that you are evicting the tenant as retaliation for an event or action on their part. One attorney says, “The term retaliatory eviction under California law relates to legal prohibition against a landlord who seeks to evict a tenant because that tenant has exercised certain legal rights protected under the law.” For example, say you’ve had a political argument with the tenant and then try to evict them, or the tenant complains about the rental unit’s condition, and is then evicted.
Retaliatory evictions are grounds for appeal and overturn of the eviction ruling. To appeal, the burden of proof initially rests on the tenant.
What is the Eviction Appeal Process in California?
The only way you can legally evict a tenant in California is through the court system.
Just because you send a notice to a tenant to get out doesn’t mean they will. That’s why landlords must follow California’s complex eviction procedures to ensure your request is held up in court.
In California, tenant eviction is a legal process called an unlawful detainer. Typically, attorneys handle both the eviction and the eviction appeals process. While the landlord must file the eviction, the tenant must also file the appeal with the lower courts. The eviction appeal has several steps:
- The tenant must file the appeal within 30 days of receiving the court’s eviction judgment.
- The tenant must serve the appeal to the landlord via a process-server.
- Within 10 days, the tenant must tell the court which documents they want the judge to review in the eviction appeal case.
- If the tenant’s lawyer files a stay of enforcement or relief from forfeiture, they may be allowed to stay in the property past the eviction date as the court case is pending.
- This process also requires filing an appellate brief in the Court of Appeals. For landlords, your lawyer should also file a reply.
Under current laws, there are several reasons a tenant could invoke when filing an appeal. NOLO says this includes:
- A procedural defense, such as the landlord not following the rules for filing and notifying the tenant of the eviction.
- A rental unit defense where the landlord failed to maintain the property to make it habitable.
- A discriminatory defense, citing an incident where the landlord discriminated against the tenant somehow.
An eviction appeal can add to the frustration if you’ve patiently followed the rules and gotten to the eviction. What can you do?
What to Do if a Tenant Appeals an Eviction?
A tenant appeal is like a gut check for a landlord. Under current case law, if the tenant wins the appeal and the courts rule in their favor, you may be required to pay damages to the tenant. This is where your documentation of the tenant/landlord relationship is so very critical to the next step in the process. Once an appeal goes to a judge, you must be prepared for one of three things to happen:
- The judge could deny the stay of eviction appeal filed by the tenant and the eviction moves forward.
- The judge could approve the eviction appeal and allow the tenant more time to move out.
- The judge could agree to hear the case, which requires you to go in front of the court system to share your side of the story.
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The tenant must file the appeal within 30 days of receiving the court’s eviction judgment. This appeal must be served to the landlord via a process server, and within 10 days, the tenant must tell the court which documents they want included in their case. If the tenant’s lawyer files a stay of enforcement or relief from forfeiture, they may be allowed to stay in the property past the eviction date as the court case is pending. This process also requires filing of an appellate brief in the Court of Appeals. For landlord’s, your lawyer should also file a reply.
Once an appeal goes to a judge, you must be prepared for one of three things to happen:
1. The stay of eviction appeal could be denied and the eviction moves forward
2. The appeal could be granted, allowing the tenant more time to move out
3. The judge could agree to hear the case, which requires you to go in front of the court system to share your side of the story