To evict an occupant under California Code of Civil Procedure 1161a after a foreclosure, the new owner has to record the Trustee’s Deed Upon Sale, serve a written notice to quit that matches the type of occupant, let the notice period run out, and then file an unlawful detainer lawsuit in the Superior Court for the county where the property sits. Each step has to happen in that order, and each has a way to go wrong that forces the whole process to restart.
Record the Trustee’s Deed Before Anything Else
CCP 1161a applies when a property has been sold through a nonjudicial foreclosure conducted under California Civil Code 2924, and it requires the new owner to have “duly perfected” title before serving any notice.1California Legislative Information. California Code CCP 1161a Perfecting title means recording the Trustee’s Deed Upon Sale with the county recorder in the county where the property is located.
This step is not a formality. If the deed is not on record before the notice to quit is served, the notice is defective and any unlawful detainer built on it will fail. There is no way to cure that mistake inside the current case. The new owner records, then starts over with a fresh notice.
The underlying foreclosure sale itself also has to have followed Civil Code 2924, which requires recording a notice of default, waiting at least three months, and then recording and publishing a notice of sale before the trustee’s sale can occur.2California Legislative Information. California Civil Code 2924 A defect in that earlier process gives occupants a defense that can unravel the eviction.
Match the Notice to the Occupant
The notice to quit is the formal start of the eviction, and its length depends entirely on who is living in the property. Classifying the occupant correctly is where many post-foreclosure evictions go off the rails.
Former Owner and Household
The former owner, and anyone claiming a right to be there through the former owner, receives a three-day written notice to quit.1California Legislative Information. California Code CCP 1161a It is unconditional. There is no cure period, no chance to pay something and stay. The three days are calendar days, and if day three lands on a weekend or court holiday, the deadline moves to the next business day.
Bona Fide Tenants
Tenants who were renting the property before the foreclosure are protected by two overlapping rules.
Under CCP 1161a alone, a tenant is entitled to written notice at least as long as the rental period, capped at 30 days.1California Legislative Information. California Code CCP 1161a A month-to-month tenant gets 30 days; a week-to-week tenant gets at least seven.
Federal law goes further. The Protecting Tenants at Foreclosure Act requires the new owner to give any bona fide tenant at least 90 days’ written notice before the eviction takes effect.3Office of the Law Revision Counsel. 12 USC 5220 – Assistance to Homeowners Originally set to expire in 2014, Congress made it permanent in 2018. A tenant with a fixed-term lease entered into before the notice of foreclosure can stay through the end of that lease. The one exception is when the new owner plans to live in the property as a primary residence, and even then the tenant still gets 90 days.
To count as “bona fide” under federal law, three things have to be true: the tenant is not the former owner or an immediate family member of the former owner, the lease was arm’s-length, and the rent is not substantially below fair market value.3Office of the Law Revision Counsel. 12 USC 5220 – Assistance to Homeowners Arrangements between a distressed homeowner and a relative designed to delay eviction fail this test.
One boundary worth flagging: tenants who lived on the property alongside the former owner do not get the 90-day federal protection. They fall back to standard CCP 1161a rules with notice capped at 30 days.
Serve the Notice the Right Way
A correctly drafted notice served the wrong way is still a defective notice. CCP 1162 sets out the methods, and they run in a required order.4California Legislative Information. California Code of Civil Procedure 1162
- Personal service by handing the notice directly to the occupant. This must be attempted first.
- Substituted service, which is only available if the occupant is not at home or at work. Leave a copy with someone of suitable age and discretion at either location, and mail a copy to the occupant at the property.
- Post and mail, which is only available if the first two methods fail. Attach a copy to a visible spot on the property and mail another copy to the occupant.
Jumping straight to post-and-mail without a genuine attempt at the other methods is one of the most common procedural defects occupants raise to get cases dismissed. The process server should document every attempt in detail.
File the Unlawful Detainer
Once the notice period expires and the occupant is still there, the new owner files an unlawful detainer complaint in the Superior Court for the county where the property is located. The complaint has to allege that the property was sold through a valid foreclosure and that title has been duly perfected.
The standard Judicial Council unlawful detainer form (UD-100) says on its face that it cannot be used for post-foreclosure evictions under CCP 1161a.5California Courts. UD-100 Complaint – Unlawful Detainer The complaint has to be drafted to address the specific CCP 1161a elements, which usually means an attorney or a specialized form.
After filing, the occupant must be formally served with the summons and complaint by a registered process server. That is a separate service from the notice to quit. A personally served occupant has 10 court days to file a written answer. Court days exclude Saturdays, Sundays, and judicial holidays. When service is by mail, the occupant gets an additional five court days.6California Legislative Information. California Code of Civil Procedure 1167
If no answer arrives in that window, the new owner can request a default judgment. If the occupant does answer, the court sets an expedited trial. Unlawful detainer cases move faster than ordinary civil litigation, and the scope of what the court looks at is narrow: whether the sale occurred, whether title was perfected, whether proper notice was given, and whether the notice period expired.
Get and Enforce the Writ of Possession
Winning the judgment does not put the new owner back in the property. The court issues a writ of possession, which the new owner delivers to the county sheriff or marshal for enforcement. The levying officer then serves a copy of the writ on the occupant, either personally, through a household member, or by posting it on the property.7California Legislative Information. California Code of Civil Procedure 715.020
Occupants have exactly five days from service of the writ to vacate. No extensions apply. If anyone is still there on day six, the sheriff returns to physically remove them and put the new owner in possession.7California Legislative Information. California Code of Civil Procedure 715.020
Anyone on the property who was not named in the lawsuit and who claims a right to possession predating the filing can challenge enforcement by filing a claim of right to possession. The court holds a hearing within five to fifteen days to evaluate it.8California Legislative Information. California Code of Civil Procedure 1174.3 To head this off, the new owner can serve a prejudgment claim of right to possession on all occupants along with the summons and complaint, which cuts off later claims at the enforcement stage.
Active-Duty Servicemembers
Occupants on active military duty have additional protection under the federal Servicemembers Civil Relief Act. A servicemember or their dependents cannot be evicted from a primary residence without a court order, and the protection applies when the monthly rent is below an annually adjusted threshold (set at $2,400 in 2003 and adjusted each year based on housing costs).9Office of the Law Revision Counsel. 50 USC 3951 – Evictions and Distress
A servicemember whose ability to pay rent or respond to an eviction is materially affected by military service can ask the court to stay proceedings for at least 90 days, and the court can extend that further. Even after judgment, the court can pause enforcement of a writ of possession for the duration of military service plus 90 days after discharge.9Office of the Law Revision Counsel. 50 USC 3951 – Evictions and Distress Knowingly violating these protections is a federal misdemeanor.
Defenses That Can Sink the Case
Occupants defending a CCP 1161a case raise them in the written answer. The most effective ones focus on procedure and title:
- Title was not perfected because the Trustee’s Deed Upon Sale was not recorded before the notice to quit went out.
- The underlying foreclosure violated Civil Code 2924, such as no recorded notice of default, no three-month wait, or improper notice of sale.2California Legislative Information. California Civil Code 2924
- The notice to quit was not served in the correct order under CCP 1162, or the mailing after substituted service was skipped.4California Legislative Information. California Code of Civil Procedure 1162
- A bona fide tenant received a three-day notice instead of the required 90-day federal notice.
- The occupant was misclassified as the former owner when they were actually a pre-foreclosure tenant.
A successful defense usually means dismissal without prejudice. The new owner can fix the mistake and refile, but that costs time and money, which is exactly why the initial steps have to be done right.
Belongings Left in the Property
After a lockout, personal property is often still inside. California does not let the new owner throw it away. CCP 1174 requires storing the property in a safe place and providing written notice to the former occupant (and anyone else the new owner reasonably believes owns the property) explaining how to reclaim it.10California Legislative Information. California Code of Civil Procedure 1174
The former occupant can reclaim belongings by paying reasonable storage costs within the timeframe set in the notice. Anything that appears lost rather than abandoned goes to the local police or sheriff. Items that no one claims by the deadline can be disposed of or sold under the procedures in Civil Code 1988.10California Legislative Information. California Code of Civil Procedure 1174 Following the steps protects the new owner from liability; skipping them does not.
Cash for Keys as an Alternative
Many new owners avoid the full unlawful detainer process by negotiating a “cash for keys” agreement. The new owner pays a lump sum in exchange for the occupant vacating by a specific date and leaving the property in reasonable condition. Contested unlawful detainers can drag on for months, so this is often faster and cheaper for the new owner, and for the occupant it means moving money and no unlawful detainer judgment on their record.
Any cash-for-keys agreement should be in writing, signed by both sides, and cover the exact move-out date, the payment amount and timing, the expected condition of the property, and a mutual release of claims. Payment is typically made after the occupant has vacated and turned over the keys, not before. An occupant who signs the agreement and then refuses to leave has effectively admitted they have no right to stay, which makes the follow-up unlawful detainer straightforward.