Unfortunately, it sometimes becomes necessary to evict a church tenant. This may result from failing to pay rent, or otherwise not abiding by the terms and conditions of the agreement. Regardless of the reason, the steps for a contested or necessary eviction are the same and must be followed precisely. An eviction or Unlawful Detainer of a church tenant follows the statutes set forth for a commercial tenancy which varies greatly from that of a residential tenancy.
Please note that in California, it is the Sheriff’s department that does the actual eviction based on a Court Order. Never change the locks on your tenant or otherwise materially restrict their access.
First and foremost, always have a written rental agreement between the parties which clearly defines the terms and conditions. This is especially important if it becomes necessary to file an Unlawful Detainer lawsuit against your tenant. In most instances, the Courts will uphold the rental agreement, even if some of its terms may be deemed unfair. Additionally, the implied protections that are found in residential rentals simply do not exist for commercial tenancies.
For example, there are no implied warranties of habitability. In other words, a commercial tenant can lease space that is not usable for their business but is still liable to pay rent. In addition, a commercial tenant has no statutory right to repair the facility and deduct or off-set the rental amount due as in a residential situation.
Simply put, the written agreement between the landlord and tenant sets forth the rights, obligations, and remedies of both parties.
Once you have determined that your tenant is in violation of one or more terms of the agreement and before you seek the assistance of the Court, you must first provide your tenant with written notice. Should the tenant then fail to cure the default within the time constraints of the notice, you may then proceed with obtaining a Court order for the sheriff to evict the tenant.
Providing the tenant with insufficient or improper notice will defect the effort to remove the tenant and result in the process starting over again. The amount of time that must be provided for in the notice often depends on the time agreed in the agreement. Whereas a three-day notice to pay rent may be appropriate, the agreement may set forth different time frames to cure specific defaults. By way of an example, fifteen days may be required to provide adequate insurance, but thirty days to cure another default such as damage caused by the tenant. Where there is more than one default with varying periods to cure, separate notices will need to be provided for each.
The manner in which notice is provided to the tenant is of the outmost importance. California statutes have strict requirements governing the time and manner of service. However, the parties to a commercial lease can legally agree to the notice provisions required which may differ from that of the statute. As a general rule of thumb, such notices should be served by certified mail with return receipt at the address specified in the agreement.
Failure to properly serve proper notice is fatal to an Unlawful Detainer action.
Once the tenant has been provided proper notice and given the appropriate time to cure, but fails to do so, the next step is to seek the assistance of the legal system by filing a lawsuit. At this point, there are two items of paramount importance. Here again, proper service of the summons and complaint of the Unlawful Detainer by a registered process server or another method that is legally authorized. The complaint and proof of service must then be filed with the Court, along with copies of the agreement and the notice provided to the tenant and its proof of service.
An Unlawful Detainer is a situation‐specific legal document and should not be left to the uninformed when evicting a commercial tenant. If a mistake is made anywhere in the process, the tenant may challenge any portion of the complaint which may, in turn, cause the entire process to begin again.
If the tenant elects not to vacate the property at that point and contest the Unlawful Detainer, a trial will be held and the matter brought for the Court for adjudication. At this point, the other important point comes into play. If either party is a corporation, they must be in good standing with the State of California and must be represented by an attorney to be heard by the Court. The lack of either two will result in the Court not hearing your side of the case.
Should you prevail in Court and be awarded a judgment by the Court for the possession of your property and the sheriff may be necessary to actually evict your tenant. Additionally, the Court may award you the unpaid rents due or for other damages as may be deemed appropriate. Should the tenant remain after the sheriff post the property with an order to vacate, the sheriff will return and physically remove the tenant.
Beware of self-help measures and never presume you can change the locks on your tenant or simply dispose of their personal property. Follow all of the statutory requirements, including proper notice, service, and time constraints. It is often beneficial to consult an attorney in order to follow the correct procedures, and especially if a corporation, to be heard in Court.
If you elect to pursue an Unlawful Detainer action for possession of the property, as opposed to filing suit for breach of contract, you may forego the right to pursue other damages for some harm other than the nonpayment of rent or other incidentals related to the eviction.
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Disclaimer: Every situation is different and particular facts may vary thereby changing or altering a possible course of action or conclusion. The information contained herein is intended to be general in nature as laws vary between federal, state, counties, and municipalities and therefore may not apply to any given matter. This information is not intended to be legal advice or relied upon as a legal opinion, course of action, accounting, tax or other professional service. You should consult the proper legal or professional advisor knowledgeable in the area that pertains to your particular situation.