Trespassing or Eviction? My wife and I own a property with a 2 studios. Tenant moved in on April 4 this year. Paid with a $1000 money order that was later claimed to be stolen; the money was paid back to issuer MoneyGram by our Wells Fargo bank in July. Tenant has not paid since move-in.
Is this trespassing? We have been advised to pursue this route by a Riverside attorney and we seek a 2nd opinion. Would like to avoid a lengthy eviction process, which has not been started. Tenant is very savvy about tenant rights and keeps requesting a "notice of detainer" so she can pursue her legal rights.
There was no signed lease, just a receipt of tenant's $1000 payment. The tenant was given a key by our manager in lieu of full payment ($1250) due on move-in. Balance was never paid. A 12 month lease was proposed but never signed.
3 Answers from Attorneys
You could argue that she used fraud to gain possession of the premises and is therefore trespassing however I do not think that a judge would agree with you. I would advise that you serve the appropriate notice to terminate the tenancy. It can be a thirty day notice since this is a month to month tenancy (lease not signed) and/or a three day notice to pay rent or quit for the unpaid rent. If she pays pursuant to the three day pay or quit you can proceed with an eviction after the 30 day expires. If she does not pay you can proceed immediatley on the pay or quit notice.
I'm not sure who is telling you that asserting a trespass will move things along any quicker than an unlawful detainer proceeding. A trespasser in occupancy is no different than a tenant who does not pay rent or holds over after a termination of tenancy, or an owner who stays after a foreclosure for that matter - all three situations are an unlawful detainer. The only situation in which a trespasser can be removed sooner than via an unlawful detainer is if you can actually convince the police to treat them as a trespasser. Ninety-nine times out of a hundred, however, the police will say "it's a civil matter." That's police-speak for "we don't want to do anything that doesn't involve a clear cut obvious crime unless there is a certified court order that we have to enforce." So if I were in your shoes, I guess I would TRY having the manager call the police and see if they will remove the person, but don't count on it going anywhere. As for your tenant knowing tenants rights, she is full of it. There is no such thing as a notice of detainer in landlord/tenant law in California. A notice of detainer is a criminal law process for holding a prisoner. She is just blowing smoke up your backside. You just need to bite the bullet and get an attorney to prosecute an unlawful detainer action as quickly as possible.
I think Mr. McCormick has a valid point. A trespasser may require an action in ejectment, which would take 18 months. Serve a three day pay or quit immediately and proceed with an unlawful detainer. Also, get a new attorney.