The creation of a tenancy, either orally or in writing, brings into play local, state and federal laws that affect the rights and responsibilities of landlords and tenants. Local laws, like rent control ordinances, normally only apply to residential tenancies, while federal laws, such as those prohibiting discrimination or protecting those filing for bankruptcy, affect both residential and commercial tenancies. Most cases are resolved solely through the application of state laws dealing with the formation, interpretation and enforcement of that form of a contract known as a lease.
A lease, like any contract, can be subject to different interpretations by the parties. They can dispute who has the responsibility to pay a particular cost, or argue about what improvements constitute a fixture, or disagree about whether one of the uses of the premises is allowed by the lease. Possession, though, is the most frequently litigated issue and its resolution is dependent upon whether a material term of the lease has been breached.
By far the most common breach is the failure to pay rent which, if not cured within the period prescribed in a notice to pay rent or quit, gives the landlord the right to file an expedited legal action called an unlawful detainer. While Civil Code Section 1170.5 requires that a trial be held within 20 days of the date a trial is requested, it is not uncommon for courtroom congestion or delaying tactics by the defendant to delay a trial for several weeks. If a judgment is rendered in the landlord’s favor, his right to possession is restored through a writ of possession served and enforced by the sheriff.
That judgment will include past due rent, costs and, if the lease so provides, attorney’s fees to the prevailing party. If the landlord wants to collect post-judgment rent, he must do so through a breach of contract action against the tenant. Post-judgment rent, as well as the judgment amount itself, can be sought in a breach of contract action against any person who guaranteed performance of the lease. Statutory procedures are available to collect any dollar amount awarded.
This office has successfully handled dozens of unlawful detainer actions for IDS Realty Group. one of the largest developers and managers of industrial and commercial properties in Southern California. It has enforced the judgments growing out of those actions. It has also, where the financial circumstances of the tenant warranted it, regained possession of premises through negotiated surrenders and/or buy-outs or through the statutory abandonment procedure found at Civil Code Section 1951.3.
Whether a breach is something as common as the failure to pay rent, or something as complex as drafting language in an industrial lease demanded by an equipment vendor to protect its rights, the guiding principle followed by this office is implementing the most cost effective solution through negotiation or litigation.