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
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.
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.
- Los Angeles Partition Attorney
- Orange County Partition Attorney
- San Diego Partition Attorney
- San Francisco Partition Attorney
- Riverside Partition Attorney
- Palm Springs Partition Attorney
- San Bernardino Partition Attorney
- Palo Alto Partition Attorney
- San Jose Partition Attorney
- Sacramento Partition Attorney
- Santa Barbara Partition Attorney
- Redding Partition Attorney
- Oakland Partition Attorney
- Monterey Bay Partition Attorney
- Walnut Creek Partition Attorney
- San Fernando Valley Partition Attorney
- San Gabriel Valley Partition Attorney
- Bakersfield Partition Attorney
- Long Beach Partition Attorney
- Fresno Partition Attorney
- What is an Answer to a Partition Action?Answer to a Partition Action Complaint in California When an action for partition is filed, the opposing party has an opportunity to respond to this action by filing an answer. An answer to a partition action is a pleading by…
- Civil Code § 683.2(c) – Joint Tenancy Severance After Death is Limited by California LawBy definition, a joint tenancy is an interest in property in which each party has an equal share in the property. Joint tenants also enjoy the privilege of the right of survivorship, which allows a deceased joint tenant’s interest in…
- The Ultimate Glossary of Partition Action TermsA partition action is the only court-ordered process to separate joint owners’ respective interests in California real estate. This process can be long, tedious, and difficult, but the attorneys at Talkov Law are here to help. They have provided this…
- Co-Owner’s Rights to Lease and Evict TenantsA common issue with co-ownership is how to manage rented property. Notably, many times only one of the co-owners allows a third party to lease the co-owned property without the consent or over the objection of the other co-owners. As…
- What is an Ouster?Co-ownership of property can raise many questions about the rights of each owner to the common property. Conversely, that co-ownership relationship can sour, causing one co-owner to seek the benefits of sole ownership- the right to exclude others- without the…
- How to Win a Partition ActionThe Tricks to Winning a Partition Action in California A partition action is the only court process in California to end disputes when parties are co-owners (also known as co-tenants) of real property. Indeed, the court must divide the real…
- Absolute Right to Partition in CaliforniaOne of the most common questions raised by co-owners of real property in California is how to force the sale of the property when the co-owners do not agree. California Code of Civil Procedure Section 872.210 allows a co-owner to…
- If I Leave the Property, Do I Forfeit Co-Ownership Rights?As partition attorneys, property co-owners frequently ask if ownership rights can be forfeited by a co-owner moving out of (“abandoning”) the property. More specifically, co-owners want to know if they would give up their ownership rights to a co-owned property…