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Legal Q & A: The Unlawful Detainer Action and Stipulated Agreements – by Franco Simone, Esq.

Posted on 01. Dec, 2016 by in all, Magazine Articles

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Q: I have filed an eviction (unlawful detainer lawsuit) and I think I will win if we must go to trial. My attorney wants me to consider settling the case, why should I settle instead of going to trial?A: Entering into a stipulated agreement allows you to decide the disposition of your case.  When you go to trial you never know what can happen.  Unlawful detainer actions are very technical and even the smallest mistake in your paperwork can cause you to lose your entire case and have to start over.  Going to trial is always a risk, so in many cases it is wise to settle.

 

Q: How do I settle an unlawful detainer, and if I do, do I still have to go to trial?
A: If you and the tenant come to an agreement on how to resolve your unlawful detainer, you can enter into a stipulation.  A stipulation is an agreement by the parties to settle the case that is enforceable by the Court.  The parties, their attorneys (if applicable) and the Judge or Commissioner will all sign the stipulation.  The stipulation becomes a binding court order, so that if either side breaches the stipulation, the other side can seek to have it enforced by the Court.  The terms of the settlement are negotiated by the parties.  It is very important that the parties carefully choose their terms because once the stipulation is signed and made a court order, the terms cannot be changed unless both sides agree to it.  If you are able to reach an agreement and draft a stipulation prior to trial you will not need to go through with the trial.

 

Q: What kind of agreements can I make in the stipulation?
A: “Pay and Stay”.  If you would like to continue renting to your tenant and they are willing to pay off the back rent and possibly your attorney’s fees, you can enter into a stipulation where they pay off this amount in installments, in addition to the regular monthly payments.  You can include a term in the stipulation that allows you to request an immediate lockout if they breach any payment term until they pay off the entire amount of back rent and attorney’s fees that are due to you.  Your original rental agreement or lease with them will still apply.  Once they pay off the entire amount of back rent, your regular rental agreement with them will resume.  The downside to this method is that if they pay off the entire past due amount under your agreement, become current, and then fall behind again, you will have to serve them with a three day notice to pay rent or quit and start the eviction process over.  However, if you know your tenant is going through a period of financial difficulty that you believe is just temporary, this might be the right option for you.

“Move-Out Date with Payment”.  If you feel the tenant will never really be able to come current on their back rent and continue to pay their monthly rent, it might be best to enter into a stipulation where you and the tenant agree on a move out date.  You can also agree on how the tenant will pay off the back rent.  If the tenant is not able to pay off the entire amount of back rent and/or your attorney’s fees at one time, you can enter into a payment plan with them.  You can also insert a term into the agreement where you would be entitled to a judgment for the unpaid balance if they breach the payment plan by failing to make any payment when due.  You and the tenant have the freedom to decide when the payments will be due and how big or small each payment will be.  If you pick a move out date you can enforce it through the Court and by the Sheriff’s Department.

“Move-Out Date with Waiver”.  If your tenant is in a dire situation and you believe they will never realistically be able to come current on the back rent that they owe, even on a payment plan, you can waive the back rent that is due and agree on a move out date.  You may also apply the security deposit to the amount due and waive your remaining damages.  The benefit to this type of agreement is that the tenant may offer to move much sooner than they would if you ask them to pay off the back rent because they will not have to struggle to come up with first month’s rent and the security deposit payment at a new rental unit.  The downside is that you are waiving money they never paid you for the rent, meaning that you will not be able to collect that money down the line from the tenant if his/her financial situation improves.

“Reservation of Rights”.  You may also stipulate to a move out date only and reserve your rights to sue the tenant in a separate lawsuit.  In the unlawful detainer action you can only collect your unpaid rent, attorney’s fees, and costs.  If the tenant owes you money for other things, such as damage to the property, you might prefer to just agree on a move out date, settle the unlawful detainer, and then take the tenant to small claims court to sue for all the money he owes you for anything other than unpaid rent, attorney’s fees and costs. The downside to this is that you will have to sue the tenant again in a new case.  The upside is that you can collect more from him potentially in a small claims action and you can represent yourself easily so you will not have to pay an attorney.

Please Note:  Remember that if you wish to settle your case, you must enter into a stipulation and it must be signed by the Judge.  If your agreement is not signed by a Judge or Commissioner it will not become a court order and the Court and/or Sheriff will have no power to enforce the agreement if the tenant fails to abide by its terms.

 

Attorney Franco Simone, of Simone & Associates and The Landlords’ Legal Center has been doing evictions for over 20 years.  He is also an adjunct law professor at the University of San Diego.  Mr. Simone’s office is open Monday- Friday from 9:00 AM to 5:00 PM. –  Tel: 619-235-6180, website: www.landlordslegalcenter.com or email info@simonelawfirm.com.