Tenancy At Will California – Eviction of Unwanted Guests – Civil Code 789

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A tenancy at will, also known as an at will tenancy, is always a great situation for the tenant. The arrangement was often formerly fulfilling for the landlord because they get to help someone who they care about. These situations may get sticky, however, when the landlord attempts to remove the unwanted roommate, former employee, business partner, family member or other closely related person. This article explains the meaning of a tenancy at will, provides concrete examples of a tenancy at will, and then lays out the required real estate litigation procedures to be followed by the landlord when terminating the tenancy at will. Because getting rid of a house guest, family member or other close associate who won’t leave requires understanding complex laws, we highly recommend contacting a real estate attorney who is familiar with the laws regarding a tenancy at will.

What is a Tenancy at Will in California?

“A tenancy at will is an estate which simply confers a right to the possession of premises leased for such indefinite period as both parties shall determine such possession shall continue. The tenant at will is in possession by right with the consent of the landlord either express or implied, and he does not begin to hold unlawfully until the termination of his tenancy. His estate is a leasehold and he holds in subordination to the title of the landlord.” Covina Manor, Inc. v. Hatch (1955) 133 Cal. App. 2d Supp. 790, 792–93.

The relationship is deemed to be “at will” because, there being no stated term or rent payment provision, it is terminable “at the will” of either party (usually, the landlord’s will). See Covina Manor, Inc. v. Hatch (1955) 133 Cal. App. 2d Supp. 790, 793.

Further, a tenancy at will may also be terminated by either party’s death or incapacity. See Civ. Code § 1934; Miller & Desatnik Mgmt. Co., Inc. v. Bullock (1990) 221 CA3d Supp. 13, 17; Dugand v. Magnus (1930) 107 Cal. App. 243, 249.

Examples of Tenancy at Will in California

One example of a tenancy at will occurs when a tenant who is in possession with the permission of the owner under an oral contract, which is unenforceable under the statute of frauds. Carteri v. Roberts (1903) 140 Cal. 164, 165-67. A tenancy at will may also be created when someone enters possession pursuant to a written lease that is never executed. Linnard v. Sonnenschein (1928) 94 Cal.App. 729, 733-35.

Simply put, someone who has no lease and occupies the premises with the owner’s consent is a tenant at will. Ellingson v. Walsh, O’Connor & Barneson, et al. (1940) 15 Cal.2d 673, 675-76; Miller v. Elite Ins. Co. (1980) 100 Cal.App.3d 739. Further, a tenancy at will exists where both owner and tenant live on the property under an implied agreement that both had the right to possess the property jointly. Daluiso v. Boone (1969) 71 Cal.2d 484, 501.

In all of these situations, the relationship between the landlord and the tenant creates a tenancy at will. These relationships begin on great terms. They may sour, however, when the landlord attempts to regain possession and the tenant refuses to see their free homestead disappear without a fight.

Tenant at Will Eviction Procedure in California

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California Civil Code Section 789 requires a tenant at will to be served with at least 30-days written notice to quit tenancy

A tenancy at will may be brought to an end when the landlord attempts to sell the property, a court may order the sale of the property, the owner/landlord may have passed away creating a change in ownership through probate, a change in ownership pursuant to a sale of the property in bankruptcy, or that pesky significant other will not leave during a messy break up. A landlord may not simply place the tenant’s belongings on the street as she pleases because a Tenant at Will does have certain rights when the landlord tries to evict the tenant from the property. Thus, a specific procedure must be followed to successfully evict a tenant at will.

Tenant at Will Rights in California- Serving a Tenant at Will With 30-Day Notice to Quit Tenancy

California’s Civil Code Section 789 lays out the procedure to abide by when evicting a tenant at will as follows:

A tenancy or other estate at will, however created, may be terminated by the landlord’s giving notice in writing to the tenant, in the manner prescribed by Section 1162 of the Code of Civil Procedure, to remove from the premises within a period of not less than 30 days, to be specified in the notice.

California Civil Code § 789. Thus, in order to evict a tenant at will, the landlord must first serve a written notice to quit tenancy within a period of not less than 30 days. This notice must be served in accordance with California Code of Civil Procedure section 1162.

Keep in mind that all of this information likely does not apply to property a married couple owns as joint tenants. Spouses looking for information about jointly owned property in a divorce should contact a knowledgeable California divorce attorney.

Tenant at Will Unlawful Detainer Action in California

After successful service of the notice to quit tenancy and after waiting the period prescribed in the notice to quit, then the landlord must institute an unlawful detainer proceeding to evict the tenant at will should they refuse to move out during the period prescribed in the notice to quit.

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A landlord must follow the unlawful detainer procedure prescribed in the California Civil Code in order to evict a tenant at will who refuses to leave.

The landlord must use the California Court forms required to be filled out to file and litigate an unlawful detainer action. The forms must then be served according to California service of process laws prescribed in California Code of Civil Procedure, section 413.10, et seq.

After service is completed, then the tenant has five days to file a response with the court. The tenant who timely files a response must then serve the response on the landlord. The response is then followed by a trial on the merits of the case. The court renders a judgment on the filings after a trial. If the judgment is in favor of the landlord, a court will issue a writ of possession in order to allow the landlord to obtain possession of the premises pursuant to the court order. After the writ of possession is executed, then the tenancy at will is terminated.

Contact an Experienced Real Estate Attorney Today

If you are experiencing issues with a tenant at-will, know that you are not alone. Removing a tenant at will requires careful legal action that can be best implemented by an experienced real estate litigation attorney. The real estate attorneys at Talkov Law have years of experience handling complex real estate matters, included tenancy at will. For a free, 15 minute consultation, contact Talkov Law at (844) 4-TALKOV (825568) or online.

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About Nick Moss

Nick Moss is an attorney at Talkov Law in Los Angeles. The focus of his practice is real estate law, business litigation and bankruptcy in California. He can be reached at (310) 496-3300 or nick(at)talkovlaw.com.

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