What is a Writ of Possession?

Underwood-Blog-Images-1-3-300x300Writs of possession are special statutory remedies that usually appear in unlawful detainer actions. As their name implies, they are a means of recovering possession from someone who is wrongfully occupying a property. Writs are unique, however, in that they are almost exclusively a post-judgment tool.

This means that there must be a court judgment, order, or decree already in place that entitles a party to possession of the property. Only then can said party apply for and obtain a writ, allowing them to kick the wrongful occupants out of the house.

At Underwood Law Firm, our attorneys are familiar with writs of possession and the inherent difficulties in obtaining them. When a property is on the line, we understand what needs to be done and are prepared to assist you in achieving your litigation goals, whatever they may be.

What Types of Lawsuits Involve Writs of Possession?

There are a number of legal actions that can result in the court issuing a writ of possession. Usually, writs are issued in unlawful detainer cases. These are lawsuits that focus exclusively on a party (usually a landlord or property owner) attempting to recover possession of the property from another person.

Yet, writs can be issued in almost any lawsuit involving the possession of real property. Eminent Domain cases, for instance, allow for writs when the government entity eventually finishes its condemnation action, entitling it to occupy the subject property. “It is clear that the trial court has the power to issue a writ of possession to place the plaintiff in a condemnation suit in possession of the property to be condemned.” (Housing Authority of Los Angeles v. Lopez (1958) 159 Cal.App.2d 661, 662.)

Additionally, litigants will often come into contact with writs in partition actions. When a partition results in an order for a judicial sale, the court will typically appoint a referee to market and sell the property. But in order to make this happen, whichever party is currently living on the property needs to vacate the premises. In these instances, the court has broad authority to make whatever orders necessary to carry out the sale, including the power to issue a writ. (CCP §§ 872.120-130.)

How Do You Obtain a Writ of Possession?

Whether the case involves partition, unlawful detainer, or some other property-related claim, a writ of possession is only available as a means of enforcing a judgment. This means that there must be a judgment in place for a party to seek the writ. (CCP § 712.010.) A party cannot seek a writ “out of the box,” so to speak. There must be a judgment for possession in place first.

Once that judgment is secured, however, the victorious party may apply for a writ with the clerk of the court. The application must be accompanied by a declaration in order for the clerk to accept it. And that application must include the name of all current occupants on the premises. (CCP § 715.010.)

“Application” may be a misleading term. In reality, the clerk has a ministerial duty to issue the writ if a party can check all the boxes. (Lyons v. Santa Barbara County Sheriff’s Office (2014) 231 Cal.App.4th 1499, 1503.)

What Happens After You Apply for a Writ of Possession?

Once an application for a writ is submitted to the court clerk, what follows is a heavily statutory process. A writ is drafted that includes all sorts of information, including but not limited to a description of the property, the date the complaint was filed, the dates on which the court will hear objections to enforcement of the writ, etc. (Id.)

After the writ is drafted, it must be served on the occupying party, usually by a sheriff, but also by a registered process server. (CCP § 715.040.) These deliveries often go awry, especially when an occupying defendant has been non-responsive. For that reason, the levying officer is immune from liability in the execution of all processes and orders regular on their face and issued by a competent authority.” (CCP § 262.1)

Once the notice and writ have been served, all occupants of the property must vacate the property within five days. If they refuse, then the levying officer (the sheriff) will return to the property and remove the occupants. (CCP § 715.020.)

What is a Prejudgment Claim to a Right of Possession?

Exclusive to unlawful detainer actions are pre-judgment claims which alter the framework of possessory writs.

After filing the unlawful detainer action, the plaintiff has the option to serve a prejudgment claim of possession simultaneously with the summons and complaint. (CCP § 415.46 (a).) Unique to this process is that these three items can be served on individuals other than named defendants; “they can be served on any person who appears to be or who may have a claim to have occupied the premises at the time of the filing of the action.” (Id.) 

This prevents complications down the line, as a failure to serve all occupants, as opposed to named parties, can slow down the eviction process and even result in an overturning of a judgment of possession.

What is the Result of the Prejudgment Claim?

The reason prejudgment claims are subject to special procedures is that they are a powerful deterrent to post-judgment claims of possession. First, the filing of the prejudgment claim immediately starts a timer for occupants of the property not named in the complaint. Within 10 days of service, they must file their own claim of possession, thereby adding them to the lawsuit as a named party. (CCP § 1174.25.)

If the occupant does not file their own claim in time, then they are prevented from fighting a judgment against them. By statute, provided the prejudgment claim was properly served, no occupant of the premises may object to the enforcement of the judgment. (CCP § 415.46.)

For a plaintiff, this makes filing the prejudgment claim properly an incredibly important task. Without adequate service or without a prejudgment claim at all, then any unnamed occupant is entitled to a pre-eviction hearing after the court issues a writ of possession. (George v. County of San Luis Obispo (2000) 78 Cal.App.4th 1048, 1054.)

The effects of filing the prejudgment claim also affect the procedural aspects of enforcing a judgment via a writ of possession. For instance, a normal writ must include various information on the property. But if a prejudgment claim was properly served, then there is no need for the writ to contain either the date or dates on which the court will hear objections to the judgment or the daily rental value of the property.

How can the Attorneys at Underwood Law Assist You?

Removing anyone from a property can be an emotionally draining and arduous process. Moreover, following the procedural steps necessary to recover possession is a massive hurdle many landlords and tenants fail to overcome. But at Underwood Law, our knowledgeable attorneys are here to help. If you are concerned about recovering or staying in possession of the property, attempting to apply for a writ of possession yourself, or if you just have questions, please do not hesitate to contact our office.  

 

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