A Writ of Possession of Real Property is commonly referred to as the "eviction" writ. This writ enables the levying officer to satisfy the judgment by placing the judgment creditor in lawful and peaceful possession of specific land and appurtenant structures. A judgment for possession of real property may result from a tenant's non-payment of rent or a breach of the rental or lease contract. A writ of possession may issue at the conclusion of a civil action for unlawful detainer.
The eviction process must be carried out according to the unlawful detainer laws that govern it. The specific procedures to follow can vary depending on the circumstances of the case. The following eviction scenario is intended only to give an example of the complexities involved in an eviction proceeding and is not to be construed as legal advice.
When a tenant is behind in his/her rent, the landlord can cause to be served upon the tenant a three-day notice to pay rent or quit. Various types of such notices are available at stationary stores. The tenant must be served with a copy of the notice by either personally delivering the notice to the tenant, or posting in a conspicuous place on the property and thereafter mailing the notice to the tenant, postage prepaid, to the tenant's last known address. The lawful method of service of the notice is more particularly described in section 1162 of the Code of Civil Procedure.
If the tenant fails to pay the rent or move within the prescribed time, an unlawful detainer action can be filed with the court. The person who served the notice must complete and sign a proof of service for each tenant served. The proof(s) of service must be filed with the court in order to commence a civil action for unlawful detainer. The landlord/plaintiff is required to pay a court-filing fee. Many courts provide unlawful detainer packets containing the necessary forms and information for proceeding in the action. The summons and complaint (unlawful detainer) must be lawfully served on the tenant(s). A person over the age of 18 years (who is not a party to the action) may serve the summons on each named tenant(s)/defendant(s). After service has been effected, the original summons and proofs of service must be filed with the court.
After service of the summons and complaint has been effected, the tenant has 5 days to file a written answer to the court. If the tenant files his/her answer, the court clerk sets the day and time for a court hearing on the matter. If the tenant does not file his/her written response with the court within 5 days from service, the plaintiff may request a default judgment be entered. When a judgment is entered in favor of the landlord, whether entered after trial, stipulation or by default, the landlord may request that the court issue a writ of possession of real property. The sheriff may only enforce the writ.
In Del Norte County, the original and four photocopies of the writ may be delivered to the Sheriff's Civil Office for enforcement. Our office must receive signed written instructions from the judgment creditor's attorney of record, or from the judgment creditor if he/she has no attorney. The appropriate fee for executing the writ must also be provided. Our personnel will serve the tenant(s) with a copy of the writ and a 5-day notice to vacate. You will be notified of the date and time the eviction is to take place. You, or your designated agent, must meet the Deputy at the location at the date and time of the scheduled lockout. You should arrive about 10 minutes prior to the scheduled time. Be prepared to wait up to one hour for the deputy to arrive. Difficulties that occur during previous evictions will occasionally create unforeseen delays to the deputy's arrival. Remain visible to the responding deputy... but do not approach the residence. When you see the Sheriff's car arrive, approach and identify yourself to the deputy. The landlord is required to provide access to the premises by either key or locksmith. After the landlord has been placed into possession of the premises, it is recommended that the locks be changed to prevent re-entry by the former tenants.
The deputy will remove the occupants and provide the landlord with a signed restoration notice. This document serves as proof that possession has lawfully been restored to the landlord. Should the former tenant(s) return to the premises without your permission, you should contact the police or sheriff to report that a trespass is occurring. Be prepared to show the restoration document to the responding law enforcement officer.
If the occupants vacate the premises prior to the scheduled lockout, and you wish to cancel the formal lockout procedure, we will accept your cancellation via facsimile. Cancellations by telephone will require subsequent written/signed instructions to cancel.
Please fill out attached form and return to the Civil office located at, 650 Fifth Street, Crescent City, CA. 95531. Note: The Sheriff must have written, signed, instructions by the attorney for the creditor, or the creditor if he/she has no attorney in accordance with CCP 262, 687.010.