Get Out, Get Out, Whoever You Are! How to Oust Occupants from Trust, Estate, or Conservatorship Real Property

• Publication year: 2017
• Author: By Julie R. Woods, Esq.*

GET OUT, GET OUT, WHOEVER YOU ARE! HOW TO OUST OCCUPANTS FROM TRUST, ESTATE, OR CONSERVATORSHIP REAL PROPERTY

By Julie R. Woods, Esq.*

An unwelcome occupant may refuse to relinquish possession of real property in a trust, conservatorship, or decedent's estate. A child who cared for mom the last 10 years of her life may feel as though he or she has earned the house. A surviving spouse who has sentimental attachment to the house where she raised her children may want to pass it on to them, despite the estate's insolvency. A millennial who, like 32% of his or her peers has moved home during the recession due to a combination of student-loan debt and inflated local rents, may have nowhere else to live.¹ A former live-in caregiver whose employment has now terminated may have no income and nowhere else to live for free. Many excuses seemingly may entitle one to possession of real property.

The trustee, conservator, or personal representative then turns to her attorney for advice. The fiduciary, beneficiaries, and interested parties may pressure the attorney to remove the occupant. The occupant may have emotional attachments, financial incentives, or other reasons to possess the real property. The fiduciary may have an imminent need to repossess the house, secure the residence for sale, generate rental income, or prevent squatting or waste. To address these conflicting interests, the attorney must either step forward or bow out of the unfamiliar crossover with landlord-tenant law.

When the occupant refuses to leave, the attorney may first consider filing an unlawful detainer action. However, this approach might be a costly mistake. There are different requirements to oust various types of occupants. Part I of this article examines the three types of actions that can be filed to evict an occupant: an action for unlawful detainer, an action for ejectment, and an action under Probate Code section 850. Part II suggests framing the goals and issues with a six-step analysis to lead to the most desirable course of action. Part III recommends combining actions for ejectment with a petition under Probate Code section 850. Part IV discusses the pitfalls of filing a probate petition and civil complaint concurrently. Finally, Part V describes how the attorney can avoid giving incorrect advice that could lead to conflicts or even potential liability.

I. THE THREE ACTIONS: UNLAWFUL DETAINER, EJECTMENT, AND 850 PETITION

An attorney representing the fiduciary who holds title to real property may oust the occupant in three ways: (1) an action in unlawful detainer under Code of Civil Procedure section 1161, et seq.; (2) an action in ejectment under common law; and (3) a petition under Probate Code section 850. The common goal of all three actions is to obtain a court order to evict a person from trust, estate, or conservatorship real property, but each action has its own elements and procedures. Even an experienced attorney may misunderstand and misuse these actions.

A. Tenant or Non-Tenant? That is the Benchmark Question

The very first issue to consider is whether the occupant is a tenant. Not every occupant is a tenant, but every tenant is an occupant. Deciding whether the occupant is a tenant determines whether the occupant can be ejected, evicted, or held liable for wrongful possession, for example:

• A tenant can be unlawfully detained from real property.
• An occupant can be ejected from real property.
• An occupant wrongfully possessing real property belonging to a trust, conservatorship, or estate can be ordered to vacate under an 850 petition.

1. Occupant vs. Tenant

An occupant's mere possession of real property is a protected property right. "Occupancy for any period confers title sufficient against all except the state and those who have title by prescription, accession, transfer, will or succession."² The term "occupancy" as used in Civil Code section 1006 means actual possession because "'occupation' is synonymous with the expression 'subjection to the will and control.'"³ Occupants who are not tenants have possessory interests not based in contract.

A tenancy exists only when there is an agreement for possession of the real property between the occupant and the owner. In the context of this article, the fiduciary is holding title to the real property held in the trust, conservatorship, or decedent's estate. The fiduciary and tenant stand in privity of estate and contract.⁴ A tenancy is also known as a leasehold when "the lease gives the lessee the exclusive possession of the premises against all the world, including the owner . . . and its term is limited to endure for a definite and ascertained period, however short or long the period may be."⁵

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The fiduciary might encounter four types of tenants who have an agreement for possession of the property beyond mere occupancy. A tenant at will is an occupant who has entered the land, with the owner's permission, for an indefinite period.⁶ Examples are occupants with a voided contract or lease, with a pending execution of a lease, under an ineffective conveyance, or under continued residence with permission after expiration of a rental agreement.⁷ A periodic tenant is an occupant who has entered the land with the owner's permission, and the owner accepts rent at regular intervals.⁸ Examples of periodic tenants are occupants who pay rent month-to-month or year-to-year. A tenant for a fixed term (i.e., leasehold estate or estate for years) is an occupant who has entered the land with the owner's permission, for a definite, agreed-upon period, with exclusive possession to the tenant against the owner and the world.⁹ A tenant at sufferance is an occupant who has entered the land under a valid tenancy but continues in possession beyond the period of rightful possession without the owner's consent.¹⁰

2. Rent or Other Agreement Determines Tenancy

The fiduciary may seek to make the real property productive by asking the occupant for rent. The occupant might give money to the fiduciary or to someone who appears to be in control of the property, like the fiduciary's agent or a family member. The payment of rent may create a tenancy, either purposefully or inadvertently. The resulting tenancy might even trigger local rent control ordinances.¹¹ A fiduciary should weigh the anticipated income versus the cost of evicting a tenant before accepting rent.

The manner of the fiduciary's acceptance of rent determines or changes the type of tenancy. For example, if a tenant at sufferance pays the fiduciary rent, there is a presumption of renewal of the original type of tenancy on the same terms and for the same time (e.g., month-to-month or year-to-year).¹² A court may construe a tenancy at will as a periodic tenancy based on the acceptance of rent at regular intervals.¹³

The fiduciary's acceptance of services from an occupant may also establish a tenancy. A caregiver, servant, employee, agent, or licensee providing services to the real property owner or fiduciary may also be a tenant.¹⁴ Such tenant is subject to eviction when he continues in possession after the employment relationship has ended.¹⁵

The fiduciary should determine whether any type of tenancy is beneficial to the estate before accepting, declining, or acquiescing to an occupant's payment of rent. Conversely, if the fiduciary wants to evict an occupant by unlawful detainer, the fiduciary should collect rent or form an agreement with the occupant to create a tenancy.

B. Unlawful Detainer to Evict Tenants

A common misconception among trust and estate attorneys is that any person withholding possession of real property may be unlawfully detained. This understanding is incorrect. Only a tenant may be unlawfully detained, making tenancy a necessary prerequisite for an unlawful detainer action.¹⁶ As the proceeding is purely statutory in nature, the party seeking this remedy must bring the claim clearly within the statute.¹⁷ Unlawful detainer is governed by Code of Civil Procedure sections 1161 through 1179a.

A fiduciary may file an unlawful detainer action to determine the right to possession of real property against a tenant.¹⁸ The fiduciary may recover possession when the tenant withholds possession of the real property without the fiduciary's permission, after the tenant breaches the agreement or lease for possession.¹⁹ Although an agreement for lease or tenancy is required for a fiduciary to bring an unlawful detainer action, such a proceeding is not an action in contract, but a special action for the fiduciary's recovery of possession from a tenant.²⁰ The public policy is to preserve the peace and recognize the unique factual and legal characteristics of the landlord-tenant relationship.²¹

The elements of unlawful detainer are: (1) a tenant, for a term less than life, is in possession of real property; (2) the tenant breaches his agreement with the landlord; and (3) the landlord demands possession.²² The tenant, or subtenant, may possess all or part of the property.²³

Unlawful detainer is one of the fastest civil trial proceedings. Unlawful detainer is an expedited summary proceeding based in statute to determine the right to possession of real property.²⁴ The complaint for unlawful detainer is filed exclusively in civil court. It is a stand-alone cause of action and unlimited in nature (when the amount in controversy exceeds $25,000).²⁵ Unlawful detainer actions are given precedence over all other civil actions that are not otherwise granted precedence.²⁶

Simply stated, a tenant is guilty of unlawful detainer when the tenant does not comply with the agreed-upon terms for possession of real property, and the tenant withholds possession without the fiduciary's permission.²⁷ Generally, a tenant is guilty of unlawful detainer when he possesses the real property after: (a) remaining in possession after the term of the agreement expires; (b) defaulting on the payment of rent; (c) neglecting or failing to perform obligations under the agreement; (d)...