When to Hire a Tax Attorney Tax Attorney vs. Enrolled Agent vs. CPA We are often asked: what is the difference between an Enrolled Agent, CPA, and Tax Attorney? Why hire one over the other? Below, we have outlined some of the most important and basic differences between these professionals. Enrolled Agents (EA) An Enrolled…

What  should you do if you are detained by CBP (Customs & Border Protection) at a US airport? 

With President Trump's immigration policy overhaul underway, many folks are wondering what they should do if they are detained at an airport. There have been reports that even United States citizens have been detained by CBP officials. The same report states new secretary of Homeland Security John Kelly is considering a rule that would allow CBP agents to turn away visitors if they do not submit the browsing history on their personal electronic devices  While such a policy may be contrary to the 4th Amendment protection against unreasonable searches and seizures, the fact that CBP has already begun demanding personal electronic devices is alarming. The question thus becomes, what should a US citizen, or LPR, do when/if they are detained by CBP?

Be aware of your rights. If you are unsure of what you are being detained for ask for an attorney.

You have probably already heard of Miranda warnings (in short, the right to remain silent and the right to an attorney). While most people know what Miranda warnings are, many have not considered their constitutional importance. Any time an individual is subject to a custodial interrogation -- an interrogation when you are in the custody of law enforcement -- the United States Constitution affords the individual a variety of protections. The chief protection is the right against compelled self-incrimination. As a result, every individual has the following options when faced with a custodial interrogation: (1) remain silent, (2) ask for an attorney, or (3) cooperate with the interrogation.

In the immigration context, questioning by CBP officials after you have been detained certainly qualifies as a custodial interrogation. As a result, if you find yourself in such a situation, you should know that you have the option of remaining silent or asking for an attorney. You also have the option of simply complying with the interrogation. Indeed, often times such an ordeal can be resolved via compliance -- CBP may just have a few questions for you for which they would like clarity. If you find yourself in such a situation, compliance with the interrogation is probably your best option. However, if you are unsure of what is going on and have been detained for an extensive period of time, we highly recommend invoking your right to counsel.

Do not sign anything until you have fully understood what you will be signing.

There have also been reports that CBP officials have presented LPRs with a document (Form I-407) that would result in the abandonment of their immigration status. With reports such as these, we recommend all detained LPRs refrain from signing any sort of immigration document presented to you by CBP officials. If you are presented with such a document, immediately attempt to ascertain the document's legal significance. If you are unable to determine the purpose of the document, immediately invoke your right to counsel and have an attorney assist you in making the determination. Under no circumstance should you sign any such document simply at the behest of a CBP official.

Questions? Do not hesitate to reach out to us.

We are here to help. If you have any family members or friends that have been effected by the Trump administration's immigration overhaul, we would be happy to assist them with any questions they may have. Contact us at contact@rhllp.net or (916) 246-9950.

Most landlords have faced this issue at some point in their career. The written lease agreement will name the individuals who both the landlord and tenant have agreed may occupy the premises. Somewhere along the way, however, an additional person moves into the premises who is not named in the lease.

This may present significant problems when evicting a tenant. Because the unnamed occupant is not a party to the lease agreement, they are not a party to the unlawful detainer case. Thus, even if the landlord obtains a favorable judgment, the unnamed occupant may object to its enforcement since the occupant is not named in the judgment.

This often causes significant delays to the eviction process. The landlords primary goal is to obtain possession of real property as quickly and efficiently as possible. However, when an unnamed occupant objects, weeks may be added to the overall process.

This result may be avoided by filing a prejudgment claim of right to possession at the time the unlawful detainer action is filed in Superior Court. This form is served with the Summons and Complaint, and informs any unnamed occupants of their right to insert themselves into the unlawful detainer proceeding. By giving unnamed occupants this right, it forces them to either insert themselves or lose the right to later object to an eviction.

Serving the prejudgment claim of right to possession is of paramount importance and can lead to significant delays if it is not properly and timely served. To ensure that the landlord obtains possession as soon as possible, Randhawa | Hundal LLP’s Eviction Attorneys make it a practice to serve the document even if there is no reason to believe the presence of an unnamed occupant.

For more information on the eviction of tenants, please contact Randhawa | Hundal LLP and speak with their experienced Eviction Attorneys.

Evicting a Tenant for Non-Payment of Rent

Evicting a tenant can be a stressful process. The landlord must comply with several legally required procedures, most of which are hyper technical and detail oriented. Failing to comply with each of the specific requirements can, and often will, result in an adverse ruling. This blog post will briefly discuss the overall procedures landlords must employ to legally, and properly, evict a tenant for failing to pay rent.

Step 1: Notice

To evict a tenant for failing to pay rent, the landlord must begin with the service of a 3-day notice to pay rent or quit. Under California Code of Civil Procedure § 1162, the landlord must include the following items in a 3-day notice to pay rent or quit:

1. Name, address, and telephone number of the person to whom rent is to be paid.
2. If payment may be made in person, the days and hours that the person can receive rent payment. If personal deliveries cannot be accepted at that address, the notice must state that rent may be paid by mail, to the owner, at the name and address stated in the three-day notice. The notice may, as an alternative, state the name, street address and account number of the bank or financial institution where rent may be paid.
3. The amount overdue must be accurately stated, and can only include overdue “rent.” Late charges are not considered “rent.”
4. The notice must be stated in the alternative. It must inform the tenant of the option to either pay the outstanding rent and remain in possession of the premises, or vacate the premises.
5. The notice must specifically itemize the amount of rent overdue for each specific month.
6. The notice must state the name(s) of the tenant(s) you are seeking to evict and the address of the rental property.

California Law provides significant legal protections for tenants. It is for this reason that many of the procedures required to evict a tenant are highly technical in nature. For example, if one of the required facts stated above is not mentioned in the 3-day notice to pay rent or quit, the tenant may file a motion to dismiss for improper notice.

Thus, even if a case is filed, it may be dismissed if the requirements mentioned above are missing from the notice. This results in wasted filing fees, service of process fees, and requires the landlord to start the proceeding over, all from scratch.

Step 2: Serve the Notice

Once the notice is created, it must be served on the tenant. Unlike a court filing, the 3-day notice to pay rent or quit can be served by the landlord and does not require service by a nonparty. It is critically important that the landlord waits for the 3-day period to expire before initiating unlawful detainer proceedings. Evicting a tenant can be delayed if the notice has any deficiencies.

Step 3: File Unlawful Detainer Action

If the 3-day period lapses without any action by the tenant, the landlord may file an unlawful detainer action in the Superior Court. The action must be filed in the county in which the real property is situated.

Filing an unlawful detainer action can be a complex process. It requires several required documents and an attorney should be consulted for this process.

Step 4: Serve the Summons and Complaint

Upon completing the necessary documents, the landlord must serve the tenant. There are three general methods of service:

1. Personal Service
2. Substituted Service
3. Post and Mail

The summons and complaint must be served by a nonparty. This most often requires the landlord to hire a process serving company. After service, it is important to file a proof of service with the court.

Step 5: Tenant has 5 days to respond

The tenant has five (5) days to respond to a summons and complaint. There are specific requirements for counting these days. An attorney should be consulted for this matter. If the tenant fails to respond within the five days, a default and default judgment may be obtained along with a writ of possession. This is the fastest and most efficient way to obtain possession of real property. However, it does not cover a judgment for overdue rent. Separate procedures must be utilized for that purpose.

Step 6: Prepare for Trial

If the tenant responds, the matter will be set for trial. It is critical that landlords prepare for trial. Obtain all documents, affidavits, and sworn statements. If witnesses can be reached, bring them to court. Judges highly favor in person testimony. Evicting a tenant and recovering money damages requires evidence to be submitted to the court.

Although this blog post addresses the steps required to evict a tenant for failing to pay rent, it is not exhaustive of what is legally required. This is a very general breakdown of what to expect, and covers the major topics. There are additional filings and documents that are critical to ensure the proper and speedy recovery of possession. Contact Randhawa | Hundal LLP to speak with the firms Eviction Attorneys regarding these other delicate matters.

This blog post discusses the unlawful detainer process. The discussion is abbreviated, and thus, should not be relied upon as controlling authority. There are many other steps involved in filing an unlawful detainer action. Therefore, the reader of this post is strongly encouraged to consult with Randhawa | Hundal LLP’s Eviction Attorneys.

What is an Unlawful Detainer?

An unlawful detainer is a legal term of art. When seeking to evict a tenant, a landlord files an unlawful detainer action in the Superior Court. This initiates the formal court process that must be used to evict a tenant for unlawful detainer.
Using the formal court process is of paramount importance. Under California law, a landlord is prohibited from using self-help procedures to evict a tenant. As such, a landlord cannot forcibly remove a tenant from possession of lawfully leased real property. Doing so exposes the landlord to civil liability and delays the eviction.

Steps for Evicting a Tenant

In most (but not all) circumstances, the landlord must serve a notice upon the tenant prior to filing an unlawful detainer action in court. The type of notice that must be served depends upon the reason for which the tenant is being evicted. The various types of notices differ in length and purpose. As a general matter, a landlord can serve either a 3-day, 30-day, or 60-day notice.

3-day notice to pay rent or quit:

If the tenant fails to pay rent, the landlord may serve the tenant with a 3-day notice to pay rent or quit. This notice must be stated in the alternative, and provides the tenant with two options. First, the tenant can pay the full amount of past due rent. Second, the tenant can choose, in the alternative, to forfeit the lease and vacate the premises.

The 3-day notice to pay rent or quit is hyper technical and must expressly state particular facts. Failure to comply with the requirements will adversely affect an unlawful detainer proceeding.

30-day notice:

Thirty (30) day notices are utilized for several reasons. This discussion, however, will be limited to the primary reason: to terminate a periodic tenancy.

A periodic tenancy is a tenancy which automatically renews itself for successive periods. A month-to-month tenancy, for example, is a periodic tenancy since it renews every month until either party provides proper legal notice of termination.

To terminate a periodic tenancy, the landlord must serve a 30-day notice stating the intention not to renew the tenancy. However, it is important to bear in mind that if a tenant has been residing at the premises for more than one year, a 60-day notice (and not a 30-day notice) must be served to terminate a month-to-month tenancy.

60-day notice:

A 60-day notice is not very common. Therefore, this blog post will not discuss the intricacies of such a notice. For purposes of this blog, it is sufficient to state that if a tenant has occupied the premises for more than one year, a 60-day (and not a 30-day) notice must be used to terminate a month-to-month tenancy.

When to Start Unlawful Detainer Proceedings

The landlord may commence unlawful detainer proceedings after legal notice is served and the notice period stated therein expires. For example, if a 3-day notice to pay rent or quit is served, an unlawful detainer action cannot be filed until after those 3-days expire. Similarly, if a 30-day notice is served, an unlawful detainer cannot be filed until the 30 days expire.

What Happens After Filing the Suit?

After the Unlawful Detainer is filed in court, the landlord must serve the tenant with the summons and complaint. To serve the summons and complaint, a nonparty must be used. This is most often carried out by hiring a process serving company. It is important to note that although a nonparty must be used to serve the summons and complaint, anyone (including the landlord) may serve the initial notice.

After the summons and complaint is served, the landlord must file a proof of service with the court. The tenant has 5 days to respond to the complaint. If the tenant fails to respond, the landlord may request a default and default judgment to regain possession of the premises. This concept will be discussed in a different blog post. If the tenant does respond, however, the matter will be set for trial. What happens at trial, and how one should prepare for it, is beyond the scope of this post.

Getting Into the Marijuana Business On November 8, Californians voted to legalize recreational marijuana, which could significantly boost an economy that is already booming. In fact, if California were its own country, it would have the sixth largest economy in the world, and that’s without the revenue that the marijuana industry is expected to bring…

Complying With New Employment Contracts Law A new law that takes effect on January 1, 2017, forbids employers from requiring employees who live and work primarily in California to sign employment contracts that include foreign choice-of-law and choice-of-venue provisions as a condition of their employment. A choice-of-law provision allows the parties to a contract to…

Randhawa Hundal LLP Introduces Online Questionnaires We are happy to announce the launch of some new resources for our website. Under the “Contact” drop-down menu, we have added several questionnaires — estate planning, divorce, and LLC formation — to make things easier on our clients. These questionnaires are intended to be used after clients have…

© 2016 Randhawa | Hundal LLP. All rights reserved.