This is the property of the Daily Journal Corporation and fully protected by copyright. It is made available only to Daily Journal subscribers for personal or collaborative purposes and may not be distributed, reproduced, modified, stored or transferred without written permission. Please click "Reprint" to order presentation-ready copies to distribute to clients or use in commercial marketing materials or for permission to post on a website. and copyright (showing year of publication) at the bottom.

The ABCs of UDs

By William D. Dodson Ben Armistead | May 23, 2016


general / Real Estate

The ABCs of UDs

Unlawful Detainer (UD) is a statutory cause of action that allows a person wrongfully deprived of the possession of his or her California real property by a tenant to regain possession of it, together with certain unpaid rents and "damages in lieu of rent" to the date of trial, if appropriate.

The objective of this article and self-study test is to familiarize bench officers and litigants with the most important features of UD law, to consider problem areas in this field, and examine practical solutions. Readers will learn about who is entitled to possession in a UD case, and what is considered the proper payment of rent.

Who is entitled to possession?

Real property law in general, and UD law in particular, provide that the owner is usually entitled to all rights of possession if that right has not been given exclusively to others. Evid. Code 662. Only a landlord or successor in estate to the landlord (see CCP 1161), may bring a UD action. See CCP 1165, 369. If the true owner has died, the court should require evidence that the plaintiff is the duly authorized representative of the decedent's estate, and should require him or her to present the letters issued by the probate court. See CCP 369, Prob. Code 58(a).

The sale of the property (other than a foreclosure sale), does not affect the leasehold rights of the tenant, and any legal agreement with the prior owner, written or oral, is binding on a new owner. See Commonwealth Mem. Inc. v Telophase Soc'y of Am., 63 Cal. App. 3d 867 (1976). Nevertheless, it seems clear that before serving a three-day notice to pay or quit, a new owner must give some sort of notice to the tenant of the change of ownership. But, there is no requirement in the law that the new owner show the tenant a deed or other "official" proof of ownership. Judges should be aware that there are unscrupulous persons who, learning of a sale of an apartment building or the death of the owner, attempt to collect rent with no authority from anyone.

The tenant is not relieved of the duty to pay rent by mistakenly paying the wrong person. The tenant must pay the person listed in the three-day notice to pay rent or quit, or otherwise face eviction. See CCP 1161(2). This puts a burden on the tenant to make certain that he or she is paying the rent to the proper person.

With some exceptions (see, e.g., CCP 1161b), a foreclosure sale usually wipes out the leasehold rights of the tenant and the purchaser is entitled to possession. See Miscione v Barton Dev. Co., 52 Cal. App. 4th 1320 (1997). This is because any interest in real property that is "junior," i.e., "newer," than the interest foreclosed upon is thereby made a nullity. Leasehold interests are usually junior to trust deeds, except in long-term commercial leases, wherein parties can contractually agree to alter the priorities otherwise fixed by law. Id. The purchaser must serve a three-day notice to quit on the former owner. CCP 1161a.

The UD court must honor the deed from the foreclosure sale. See Vella v. Hudgins, 20 Cal. 3d 251 (1977) ("Matters affecting the validity of the trust deed or primary obligation itself, or other basic defects in the plaintiff's title, are neither properly raised in [an unlawful detainer] summary proceeding for possession, nor are they concluded by the judgment."). A court in a UD action conducts only a narrow inquiry regarding title, merely determining whether the purchaser at a foreclosure sale acquired the property at a regularly conducted sale and thereafter "duly perfected" the title. CCP1161a(b)(1); Vella. A homeowner defrauded of his property by an illegal foreclosure sale should file an appropriate unlimited jurisdiction complaint (e.g., to quiet title) and request that judge to stay or enjoin the UD proceeding. See Asuncion v. Superior Court, 108 Cal. App. 3d 141 (1980). The defrauded party may then request the unlimited jurisdiction judge to transfer and consolidate the limited UD action.

Sometimes the wrong party is named as plaintiff. The owner's property manager is not authorized to bring suit in his or her own name unless there is a written agency agreement giving such authority. See CC 2322; CCP 369(a)(3). Other times the plaintiff is a corporation that has been suspended by the secretary of state for non-payment of taxes. Assuming the defendant establishes through a demurrer or plea in abatement that the corporation was suspended, trial may not proceed. See Hydrotech Systems Ltd. v. Oasis Waterpark, 52 Cal. 3d 988 (1991). But, judges sometimes grant a very short continuance to allow revival of the corporate status. Sometimes, because of an honest mistake, the plaintiff listed is a fictitious business name, which a court will usually allow to be corrected by interlineation, naming the "D.B.A" fictitious business and its proprietor.

What Is Proper Payment of Rent?

The exact method and place for rent payment is determined by the terms of the agreement between the parties, but this part of the agreement is often left unspoken and unwritten, especially in residential leases. Timing of when payment is made is important because "[t]he three-day notice period under Code of Civil Procedure section 1161 is a condition precedent to the filing of a complaint for unlawful detainer. The purpose of this notice is to give the tenant the opportunity to pay the rent and retain possession. If payment is made by the tenant within the three-day notice period, the right to possession remains in effect as if there had been no default." Briggs v. Electronic Memories & Magnetics Corp., 53 Cal. App. 3d 900 (1975).

If the landlord requires the tenant to mail the rent, that payment is tendered upon mailing. See Cornwell v. Bank of America, 224 Cal. App. 3d 995 (1990). Code of Civil Procedure Section 1161(2) also provides that if the address listed in the three-day notice "does not allow for personal delivery, then it shall be conclusively presumed that upon the mailing of any rent or notice to the owner by the tenant to the name and address provided, the notice or rent is deemed received by the owner on the date posted, if the tenant can show proof of mailing to the name and address provided by the owner."

Certain landlords require payment in cash. CC 1947.3(a) does not allow such a requirement, providing that the landlord must allow payment by a form other than cash, such as by check. Nevertheless, some persons are accustomed to dealing in cash and will not hesitate to pay in cash, often because they would not be able to properly open a bank account. Sometimes the landlord provides no receipt. The tenant's usual solution is to use money orders and keep the receipt, which usually verifies the date of purchase). Most landlords (even unscrupulous landlords) will accept money orders. The tenant who pays in cash and does not get a receipt has created his own problem of proof. Even without documentation of payment, however, the court is entitled to believe the tenant's testimony of payment, especially if it is confirmed by other testimony. That, however, is an exceptional case. Most judges place great weight on the documentary evidence in UD cases. (Note that most money orders show a date of purchase. Some do not, but, even then, the purchaser should have received a register receipt showing the date of purchase of the money order. This evidence can be crucial to the tenant's claim of a timely tender of rent.)

A very difficult case arises when a low-income tenant mails rent to the landlord after always previously paying in person. It very often happens that, once a tenant becomes convinced that the landlord is trying to trap the tenant into grounds for eviction, the tenant will send rent by certified mail without the landlord's consent. The tenant is trying to create a paper trail showing prompt payment, but the landlord can ignore the attempted tender simply by not going to the post office to pick up the certified letter. The mailing sometimes occurs a day or two before the first of the month, the most common due date. The mailing usually includes one or more money orders. After mailing, the tenant's money is tied up and there is no easy or quick way to get the money order back. The landlord may then serve a three-day notice on the second of the month. Most low-income tenants will not be able to duplicate the rent in the money orders to comply with the three-day notice. In attempting to protect himself or herself, the tenant has fallen into a trap, sometimes on the advice of people who should know better. If the three-day notice is valid, the court may be legally required to give possession to the landlord, even though common sense might say that the rent has really been "paid." (Note: the tenant can obtain all the benefits of an official proof of mailing by merely obtaining a "Certificate of Mailing" from the USPS at a cost of a little more than $1.00.) A potential remedy for this problem is granting relief under CCP 1179, relieving a tenant from forfeiting possession, conditioned on the tenant paying the full amount of rent due.

Usually, there is some agreement, oral or written, express or implied-in-fact, as to the due date of rent. If there is no agreement, rent is due at the end of the rental period (i.e., end of the month in a month-to-month rental) under CC 1947. It is rare for a UD judge to have to use this statute.

William D. Dodson is a Los Angeles County Superior Court commissioner.

#99

Ben Armistead


Related Tests for Real estate

general/Real Estate

Residential Solar Rights

general/Real Estate

New EU-US data privacy regime raises the bar

By Everett Monroe

general/Real Estate

Elements of unlawful detainers

By William D. Dodson

general/Real Estate

Eminent Domain Under Review