Service in Private Houses
This is a question sent to me privately. I thought I might start the discussion.
I’m concerned with the rising requests for service on UDS [unlawful detainers] at a private single family dwelling that rooms are being rented out & said occupants of these rented rooms are being evicted. In particular our right as process servers to enter said residence..
Follow a parallel discussion on the Process Server Group Facebook page.
Good question. It involves questions of safety and legality. It brings up issues of
> trespass
> consent
> lack of consent
> invasion of privacy
> due process
The safety factor is certainly a concern. If you are in someone;’s house to serve them, the defendant might likely feel that the server is invading their home. Who knows how they could react.
From a legal point of view, as long as you are invited into the house by someone who has the right to be there, you are probably OK. For instance, if the owner of the house who lives there, or even another co-occupant that has a right to be in a common area, you should be OK, You would have the right to enter a common area, but NOT the particular residence or living area of the tenant being served. Sometime the “living area” is ill defined, and the tenant’s living space may be in a common area.
The real problem comes in where the person inviting you is not there. They still gave permission, and you are there with consent, however the person you are serving may not know that.
Another huge problem is when the landlord or property owner gives consent, but doesn’t live there, and lacks the authority to give consent.
Under common law, an owner who rents a unit ceases to have a right to occupy the property. The renter has the right to occupy. Property owners often think otherwise. .In that case, they have no legal right to give consent.
There also comes into play if you are renting a furnished or unfurnished room. An unfurnished room you would have to give notice before entering for inspection or other purpose. A furnished room requires no notice. Having said that, I have a personal policy of never entering a residence. Bottom line is you can always get an order to post. Extra expense but safer.
Although the notice for inspection is a little off point in this discussion, I am intrigued by the distinction between the furnished and unfurnished room.
Why does that make a difference for a notice to inspect?
My clients have used that as a ruse to gain access for service of both a notice to pay rent or an unlawful detainer action, although that sort of trickery probably wouldn’t meet the smell test by the court.
So let me be clear, because I’ve actually done this twice because I was unable to find anything to guide me in wether I should take the service request or not. And foolishly I did not reach out to you Tony.
Am I NOT under any circumstances, lawfully able to serve in these conditions, or only if the service requestor (home owner/co-occupant) is present?
Kimberly,
No, I’m not saying that. These situations are very fact specific. I am saying that if you simply walk into someone’s house, believing you have valid consent, and the owner is not also present, the resident’s reaction to a stranger standing in their house, whether they are the defendant or any other another occupant, cannot be predicted.
Crossing the threshold of the door while serving process places the process server in a precarious situation.
A process server has no right to walk into someone’s house, unless they have consent. Even with consent, your legal presence could be an issue.
A few years ago I had an assignment to serve a defendant in an unlawful detainer action for a landlord who had previously been served a restraining order from his tenant. His only access, he believed, was through the adjoining garage whereupon he would shout out the defendant’s name to get her to the door.
When we both arrived for service, he did that and the tenant called the police. They showed up and ordered him to leave. As a process server in that situation, I was his agent, and I was also subject to the restraining order that he was violating.