A few weeks ago, I came across an article in The Weed Blog instructing tenants who use medical marijuana to “BE A NINJA AND DON’T LET YOUR LANDLORD FIND OUT.” The article appears to suggest that if a tenant is suspected of using marijuana or being in possession of marijuana on the premises, the landlord may simply call the police and hope that the police will use their discretion to take the bad tenant away. It goes on to say, “only after lawyer’s fees, blood, sweat, and tears are you returned to your original place.”
While it may be in a patient’s best interest to “be a ninja,” tenants also enjoy many protections under both state and federal law. Despite the many laws that protect tenants from being mercilessly thrown out of their apartment, many people are not aware of the necessary steps a landlord must take to legally evict a tenant. This post will explain why it’s not as simple as it may seem for a landlord to evict someone for medical marijuana use (or anything else, for that matter).
First, forcible evictions, also known as “self-help” evictions, are highly discouraged under the common law of property and are illegal under California law. In other words, a landlord who has not gone through proper court proceedings cannot: forcibly remove a tenant’s belongings from the unit, “lock a tenant out” of his unit, or prevent him from entering his unit. A tenant may actually call the police himself if the landlord is attempting to evict him without going through the proper court proceedings.
Second, under California Law, tenants enjoy the right to “exclusive possession” of their unit for a fixed period of time (as specified in the lease agreement). For example, a tenant that has entered into a lease agreement for the term of twelve months cannot be evicted before the twelve-month term expires so long as he is in compliance with the terms and provisions of his lease agreement.
And third, as discussed in my last post, landlords can typically terminate a tenancy for a “material breach” of a provision of the lease agreement. Under California landlord-tenant law, a landlord to evict a tenant by simply giving the tenant a “3-Day Notice” if the tenant: fails to pay rent on time, damages the property, uses the property to do something illegal, or becomes a serious nuisance by disturbing other tenants. As such, a breach to the “no smoking” provision of a lease agreement may form the basis for an eviction action where medical marijuana is involved. A landlord may also argue that the tenant’s marijuana usage is illegal and has become a serious nuisance.
Whether and how a landlord may argue that marijuana use or possession constitutes a material breach of the lease agreement is the subject of the next post. However, in either of these instances a landlord may move forward with an eviction action by serving a tenant with either “3-Day Notice to Perform or Quit,” or a “3-Day Notice to Terminate Tenancy.” The former requires the tenant to “cure the breach” by refraining from smoking marijuana on the premises within the next three days or leave. The latter does not give the tenant the opportunity to “cure the breach” and requires him or her to move out within three days. Landlords are provided a substantial amount of discretion in deciding whether to give a tenant the opportunity to cure or not.
Simply stated, while a landlord is under no obligation to treat medical marijuana use as a protected activity or recognize state laws that have legalized or decriminalized marijuana, they must still go through the Unlawful Detainer Process before evicting a tenant. And that process begins with the much dreaded “3-Day Notice.”
The “ninja” approach mentioned in the Weed Blog reminded me of a time when I arrived at my apartment and noticed a blue piece of paper taped to my door. Many questions ran through my mind as I rushed to read that little blue piece of paper: Was my landlord raising my rent? Was I being cited for breaking a rule? Or worse, was I being evicted?
Having spent the past year doing eviction defense work, I have developed a vicarious fear for the dreaded “3-Day Notice” that brings my clients into my office. That little blue piece of paper triggered a sense of fear despite the fact that I’m aware of my rights and I was sure I hadn’t done anything wrong. Upon receiving a “3-Day Notice” many of my clients are similarly afraid and often believe that landlords hold limitless power and that they may freely enter their unit and lock them out.
The chart below provides an overview of the unlawful detainer process and the issues that follow a “3-Day Notice.” It also clarifies the tenant duties and responsibilities.
|The Process:||What this means to you as a tenant:|
|Tenant is served with a 3-Day Notice to Quit.||You have 3 days to leave the unit, unless the notice gives you the option to “cure.”|
|Anytime after the third day, the Landlord may go to the court and file an eviction proceeding against you. This is commonly referred to as “the complaint.” (UD 100)
Some landlords are very proactive and will file the complaint on the fourth day following your 3-Day notice. Others may take up to a week.
|Nothing yet. You are not legally required to vacate the unit. While there’s nothing you can do until the papers are handed to you in person, you can call your local court to find out if there is an action pending against you. Don’t ever assume the landlord will forget or will not move forward with the eviction|
|After the complaint has been filed, the landlord may then serve you with “Summons and Complaint—Unlawful Detainer.” This will include the complaint as well as some other court documents.||You have five calendar days to file an answer with the court in which it was filed. (UD 105) It is extremely important to file your answer within the five days. If you need assistance, you may reach out to your local self-Hhlp center to assist you with filling out this form out.
You are still not legally required to vacate the unit.
|At this point, the landlord cannot take any action against you. Once the complaint has been filed, the landlord must wait for the five calendar days to run before he can take any other action. If you’ve filed an answer, the landlord must wait for a “Notice of Hearing.”||If you have submitted your answer, you will receive a letter in the mail giving you a “Notice of Hearing.” Your hearing date will be set for approximately 7-10 days after you filed your answer.
You are still not legally required to vacate the unit.
|Once the hearing date has been set, the landlord or his attorney may reach out to you to try to negotiate a deal before your court date.||You can negotiate a deal or wait for your day in court. It is crucial that any agreement you reach is in writing and that you still show up to court.|
It’s important to keep in mind that many eviction actions are settled on or before the scheduled court date. While the entire eviction process takes approximately twenty days from the time of the first notice to terminate tenancy, there are many options for a tenant once a judgment has been entered against him. My next blog post will provide a detailed overview of the actual court filings, the “material breach,” and how an eviction for medical marijuana use is likely to play out in court.
In case you’re wondering about the little blue notice on my door: The notice read, “Attention Neighbors: We are remodeling the exercise room.” It went on to inform me of the days I would be unable to use the exercise room. I smiled sighed with relief because I wasn’t being evicted…Not yet, anyway.
Disclaimer: This post is intended to provide general information about your rights as a tenant. It should not be understood to provide legal advice. Should you receive any court documents, please contact an attorney regarding your particular issue.