THE WAITING GAME – LANDLORDS BEWARE OF UNLAWFUL DETAINER EVICTION PRIOR TO TENANT APPEAL

A landlord that successfully litigates an unlawful detainer action against a tenant should think twice before evicting the tenant from the premises.  A tenant that loses a judgment on possession of the premises has the right to appeal the judgment.  If the tenant is evicted, and then the judgment is reversed on appeal, the improperly evicted tenant could be entitled to damages against the landlord.  This issue was front and center in the recent California case Beach Break Equities, LLC v. Lowell.

In Beach Break Equities, the court granted the landlord’s motion on the issue of possession and issued a writ of possession.  The tenant appealed the possession order.  While the appeal was pending, the landlord evicted the tenant under the authority of the writ of possession issued by the superior court, and then sold the property to a third party.  The appellate court reversed the possession order, and, because the tenant was prematurely evicted, found that the tenant was entitled to damages against the landlord.

The lesson for landlords is, in some circumstances, to wait for the 60-day window a tenant has to appeal a judgment to expire before evicting the tenant under a writ of possession.  The court in Breach Break Equities summarized it well: “[a] landlord [who] evicts a tenant before the appellate rights of the tenant have been exhausted… assumes the risk it will be subject to a full accounting and restitution if the judgment granting the writ of possession is reversed on appeal.”

Of course, there are many factors that go into a landlord’s decision to evict a tenant based on a writ of possession prior to expiration of the 60-day appeal period.  The decision is always fact specific and, in many circumstances, it can make sense to evict a tenant prior to expiration of the appeal period and assume the risk of damages in the unlikely event of a reversal.

David W. Wolfe  is an associate attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. He can be reached at wolfe@portersimon.com or www.portersimon.com.

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The content contained and opinions expressed in this blog are solely those of the author. This blog contains content and opinions concerning the law generally, and is not intended to constitute legal advice or to create any attorney‑client relationship with the reader. The reader should consult with an attorney about any specific legal issues prior to embarking on any course of action or inaction involving legal matters. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the contents of this blog and expressly disclaims liability for any errors and omissions.