Legal Question in Landlord & Tenant Law in California
Eviction of a tenant during bankruptcy
I own a house and rented it to a family. They moved in and immediately started mentioning and threatening to declare bankruptcy. The tenant is over 30 days late on the rent and will not respond to a pone call. I served them a 3 day notice to pay rent or quit.
1. Does a tenant have to pay rent during bankruptcy?
2. Can I evict a tenant during bankruptcy for non payment of rent?
3 If not how long do I have to wait?
4. Are they liable for back rent and damages to the house?
5. Since the bankruptcy was a premeditated act can I bring charges of fraud against the tenant in a court of law.
5 Answers from Attorneys
Re: Eviction of a tenant during bankruptcy
Yes, you can file an expedited motion in the BK court to continue with the eviction in state court. First, file the state court action after the 3 days have expired. Then, if they file BK, hire an attorney in your area. It's usually fairly inexpensive to do, and it'll be worth it to get them out and bring in a more reputable and responsible tenant. You can also file a motion to determine nondischargeability of the debt based upon fraud.
Re: Eviction of a tenant during bankruptcy
Mr. Cohen answered your question, but I thought I'd jump in here -
The bankruptcy will likely prevent you from getting any money from these tenants, as the rent they owe you is dischargeable in the bankruptcy.
Proving fraud would be a very expensive proposition,especially when what you want is your property back so you can re rent it to a more responsible tenant.
But the bankruptcy court respects your property rights in the rental, and will likely not delay an eviction on these facts. Your lawyer has to ask the bankruptcy court for permission to proceed. You likely won't recover the attorney fees you expend.
Elizabeth Powell
Re: Eviction of a tenant during bankruptcy
This is not my area of expertise, but I think the impression is given that you file first for eviction and then go to BK court, but I think you have to do the reverse. Next time a tenant talks about filing for bankruptcy, look to get him out. As a practical matter, I do not think a rental agreement of more than month to month has any legal benefit for the landlord but it does allow you t get bad tenants out sooner. i vaguely recall from law school something about priority being given to providers of necessities--doesn't giving a roof over the tenant's head qualify?
Re: Eviction of a tenant during bankruptcy
Follow Mr. Cohen's advice and act quickly so you can get some quality renters in your place.
Re: Eviction of a tenant during bankruptcy
There is nothing I can add to my colleague's answers.
Follow their advice!
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