Eviction Process HELP! Stage: Writ of Possession
Greetings All,
I went through an entire eviction process where the tenant did not answer the UD complaint and therefore was granted a default judgement (I started this because I increased the rent and tenant continued to only pay the old rent amount). I then proceeded with the the steps necessary to have a writ of possession and the sheriff then served it.
Here is where I am at with this:
I was planning on deducting the difference of rent owed from the security deposit after he moved out, but the tenant has paid the old rent amount for the month of October. He wants to stay a few more days, but he does not know how to ask for a Stay (in response to writ of execution), and I am not going to tell him how. My question is the following:
Can I allow him to stay until the end of the month without any major liabilities to me or making a "noobie" mistake.
I want to be fair, and even understanding. He was given until the 21st to move out, but I want to extend it till the 31st (10 days extension). I am aware that there is always a risk of him not moving out, and if he doesn't move out, I want to make sure that I will not run into trouble by extending it outside of the courts as far as proceeding with a judgement goes and having the sheriff enforce the writ of possession for a put-out.
Should I just continue with the writ of execution as planned or give him the extra 10-days?
In our jurisdiction we do not get to decide the day that the sheriff will enforce the writ and do the lockout. After the judgement in our favor, the sheriff serves the writ and the tenant is given a specific date and that's it. That's the day the sheriff shows up. You may not have the support of the sheriff if you try to change it. I suppose it could restart his tenancy if you allow him to stay past that date. Don't go there.
How much was the rent increase? Why do you think the tenant is making the choices he is making? Sounds like his thinking is a bit off and he needs some help. Did you try other means to save the tenancy before proceeding with eviction?
I'm curious as to what was the rent increase and how much notice you gave for the increase. A good tenant will tell you they are going to move and pay a reasonable increase until they get a new place, and not have to be evicted - going to the point of eviction would be a bad mark on their future background checks.
I would go ahead with the execution as planned. The tenant obviously didn't put your feelings into consideration when he forced you to go though the eviction process. Also I don't know what California law is, but in Delaware we have to give 60 day notice to increase rent on a month to month policy which means he would have had ample time even before making those partial rent payments to find a new place.
I also believe you are within your right to extract late fees and court cost from that deposit as well.
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tread carefully, as you may have voided the whole eviction process by accepting October's rent. But, eviction laws are local.
The original agreement was $1350 + his labor for updating the kitchen. He never fulfilled his end of the bargain, and I advised him 60-days before lease expired that I would be increasing rent to market value. I decided not to prosecute for his labor because at first I did not want to go through the entire eviction process. However, once we got closer to end of tenancy, tenant never said anything about the increase and even advised he would be moving out. Of course he did not move out and continued paying the old rental amount.
Marcia: Thank you for your input, you make a really good point about the possibility of restarting the tenancy. I believe he actually never meant to keep his end of the bargain and must have thought because I went the whole year without enforcing the labor for the kitchen that he had me "eating out of his palm," (he made several rude comments about being stupid enough to fall for that). The kitchen was never updated, and I failed and decided not to take him to court for it. I tried numerous times advising in writing that work needed to start, I also tried asking him to do it in phases, etc..finally I advised him to seek legal help at Oakland's tenant board for the series of things that would happen next.
Steve: Thank you for the input. The increase was over 10% and I gave him over 60-days notice with 3 follow-ups before his tenancy ended. This tenant verbally advised he would move out by the end of the tenancy but never wanted to sign something that indicated his move-out date. He is 2 months over the lease agreement , continues occupying and continues paying the old amount.
John: Thank you for the input, I felt he did have sufficient time.
Wayne: That's a good point, I will consult with Oakland tenant board about that. Thank you for the input.
Sounds like a pro-tenant just trying to tell you things to alter what is coming and delay further.
Just get him out. You have been patient enough. The Marshall in our area will call and set up a time for them to be out. They do not tell the tenants that time here only the landlord. This is so the tenant doesn't know when the Marshall is coming out to serve the eviction. If the tenant did they would milk every day and hour for free that they could. Instead sometimes they will panic and leave weeks early not wanting to come home and all of their stuff is picked over and taken from the street by others. If on the day of eviction there is extreme weather then the Marshall here will reschedule the eviction in that case for a few days later usually.
No legal advice.
Originally posted by @Joel Owens:
Sounds like a pro-tenant just trying to tell you things to alter what is coming and delay further.
Just get him out. You have been patient enough. The Marshall in our area will call and set up a time for them to be out. They do not tell the tenants that time here only the landlord. This is so the tenant doesn't know when the Marshall is coming out to serve the eviction. If the tenant did they would milk every day and hour for free that they could. Instead sometimes they will panic and leave weeks early not wanting to come home and all of their stuff is picked over and taken from the street by others. If on the day of eviction there is extreme weather then the Marshall here will reschedule the eviction in that case for a few days later usually.
No legal advice.
Thank you Joel.
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In my area you have to start over if you accept even $1 in the interim. Hopefully that's not the same for you. When I first saw you were evicting just for the increase I thought you might be out of line, ya know? But I see now there is more to it. My evictions always involve a full month or more of default, but I am a softy and don't recommend waiting like that. I always (only had to do it twice so far) feel a great sense of relief when it's over and wish I'd started the process sooner!
Hi Steve, Yes I am not sure about that, and I may have shot myself on the foot here, but I am looking into it. Actually heading over to the tenant board and self help at court offices for this.
Worse case scenario I will have to start everything over.
Be careful with length of time you wait to move on evictions; the holidays are coming, and while that doesn't usually have an effect on the court's feelings, the court itself starts taking vacation time and everything takes weeks longer than normal. I once had an eviction start 6 weeks before Labor Day, and the process took 2 weeks longer than it would have otherwise.
Originally posted by @Alberto Murillo:
The original agreement was $1350 + his labor for updating the kitchen. He never fulfilled his end of the bargain, ...
If you read enough here on BP, you'll find lots of threads where landlords will tell you to not allow tenants to do work for lower rent, and you've discovered why. And you'll find others who do allow tenants to do work, probably because they have not yet encountered the "why" as of yet ...
