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EVICTIONS/WRIT OF POSSESSION OF REAL PROPERTY
Court Document required-The original Writ of Possession of Real Property plus three copies.
Purpose of Process-Evict occupants and place the plaintiff in peaceful possession of the property.
Sheriff's Instructions-Use the Eviction/Writ of Possession of Real Property instruction form. The plaintiff?s attorney or the plaintiff (if the plaintiff doesn't have an attorney) must sign and date the instructions.
Time for Service-The Sheriff will serve a 5-Day Notice to Vacate with the Writ of Possession of Real Property attached. The eviction occurs on the following Tuesday or Thursday after the expiration of the 5-Day Notice.
Manner of Service-The 5-Day Notice to Vacate with the Writ of Possession of Real Property attached may be served by personal service on the tenant(s) or by posting a copy at the address and mailing a copy to the tenant(s). A uniformed deputy will meet with the owner, landlord, attorney, or agent at the scheduled eviction date and time and remove anyone who remains on the premises. Any property of the tenant left on the premises will be turned over to the owner, landlord, agent for storage.
Proof of Service-After the eviction is completed, the Sheriff will provide the person meeting with the deputy a receipt for possession of the property. A proof of service is not issued. Instead, a return detailing the Sheriff's action is prepared that accompanies the writ when it is returned to the court. A copy of this return is mailed to the plaintiff or the plaintiff's attorney.
After a judgment in an unlawful detainer action is granted, the plaintiff should have the court issue a Writ of Possession of Real Property that authorizes the Sheriff to evict the occupants from the property. No Writ of Possession of Real Property is needed to remove a Gratuitous Guest. *See note at the end of this guide.
Issuance of a Writ of Possession of Real Property is the last step of the procedure that is required to evict someone. A brochure is available in the Civil Division that lists all the steps. This brochure is for information purposes only and not legal advice. Contact an attorney if you have a legal question.
The Sheriff will serve a 5-Day Notice to Vacate with the Writ of Possession of Real Property attached. The eviction will be on the following Tuesday or Thursday after the expiration of the 5-day period. Evictions are done on Tuesdays and Thursdays only. The owner, landlord, attorney or agent will be called on the Friday before the eviction with the eviction date and time. Someone must meet with our deputy to take possession of the property. If no one shows up to meet our deputy, the eviction will not be completed. The owner, landlord, attorney, or agent should immediately notify the Sheriff if the eviction is to be cancelled. Additional fees will be required to reschedule an eviction.
Please arrange for a locksmith to be present at the eviction. Tenants often change the locks. Deputies will not pick locks, kick in doors, or break windows to gain entrance to the property. It is important to have the Sheriff complete the eviction process, post the premises with the Eviction Restoration Notice, and give you your copy of the notice.
A person who is not listed as a debtor on the Writ of Execution of Real Property and claims to be living in the property may file a Claim of Right to Possession. Upon receipt of the Claim to Right of Possession, the Sheriff must stop the eviction and send the claim to the court that issued the writ. If the claimant posts a filing fee with the court, a hearing will be set to determine the validity of the claim. If the claimant does not post the filing fee or if it is determined at the hearing that the claim is not valid, the court will issue an order directing the Sheriff to proceed with the eviction. However, the Sheriff will not accept a Claim of Right to Possession if the writ indicates that a Prejudgment Claim of Right to Possession was served with the Summons and Complaint/Unlawful Detainer pursuant to CCP 415.46. Also, the Sheriff will not accept another Claim of Right to Possession after the court issues an order to evict all persons following a Claim of Right to Possession hearing.
After the tenants have been removed from the premises, the Sheriff will give the landlord a receipt for possession. If the occupants re-enters the premises, the landlord may summon the local police department and show the responding officers the receipt for possession. Anyone who re-enters the premises after being evicted is subject to arrest for a misdemeanor violation of Penal Code section 419. **The landlord is responsible for safekeeping any property of the tenant remaining on the premises after the eviction for up to 15 days. The tenant's property may be moved to storage and reasonable storage costs assessed. See important note directly below.
**Note: AFTER THE EVICTION the tenant may retrieve property left on the premises within 15 days. Storage fees can be charged at no more than the pro-rated daily rent. Property can be disposed of only after 15 days. Proceeds from any sale of property must be returned to tenant after deduction of storage costs.
Attorneys and eviction companies are available, as are books at the library, that explain the procedure fully, provide sample forms, and advise landlords of recourse in the event of legal action of the part of the tenant(s)/defendant(s) such as a Claim to Right of Possession by a third party, a Bankruptcy Petition, etc., which can slow down the eviction process. Additional information can be obtained on the California Courts Online Self-Help website Click here to access the self-help website www.courtinfo.ca.gov/selfhelp.
*Note: Gratuitous Guest - In situations where a person is in temporary possession of a dwelling unit with the owner simply because of the good will of the owner and is not doing or providing anything in return for room and board, the occupancy of such guest can be terminated at will, without notice, or legal proceedings of any kind. This person is known as a Gratuitous Guest. Neither a judgment for possession nor writ is required. The occupancy of such a guest can be terminated at will. The owner would simply need to ask or tell the guest to leave and if the guest does not comply his further occupancy becomes an illegal trespass. The property owner should contact the local police department. If the occupant does not fall under the category of a Gratuitous Guest, a Writ of Possession of Real Property is needed to evict someone. See information above on Writ of Possession.