Effectively and Comprehensively Settling Unlawful Detainer Cases: The Devil is in the Details
By Nate Bernstein, Esq., Managing Attorney of LA Real Estate Law Group
If you are negotiating settlement in an unlawful detainer case in Court, outside of the courtroom, attending mediation, or attending a mandatory settlement conference the process of negotiating a settlement agreement in an unlawful detainer with a tenant is usually rushed and is an “inexact science.”
Sometimes in court, parties are constrained because there is usually very little time to negotiate and draft the agreement. I would keep the language of the settlement agreement simple and easy to understand — minimize the legalese.
There needs to be specific tasks and specific dates for compliance. The agreement should be drafted so the average property manager with a high school education will understand what is required. The Court should review the agreement with the tenant, so the tenant understands what they are signing and what their obligations are. The tenant needs to personally sign the agreement and get a copy of it.
When resolving an unlawful detainer case through settlement negotiation, the written agreement must address more than just the tenant’s move-out date. It should serve as a complete and enforceable contract that protects the landlord’s property rights, minimizes legal risk, and ensures finality.
It is highly recommended that you discuss any proposed settlement agreement and stipulation in detail with your own attorney to address all of the provisions and any issues you are concerned about. The following are key provisions and issues every landlord should consider including in any settlement agreement.
#1. The Psychology of Settlement in an Unlawful Detainer Action
It takes both sides to agree in writing to a settlement, and in this environment, that is challenging to achieve. In unlawful detainer cases, landlords always want to settle cases as soon as possible. Settlement provides certainty on the issue of possession and saves on legal fees.
For tenant defendants, they are usually not in a settlement mindset early in the case, and have access to paralegals, legal aid and public interest law firms to work the system. Because tenants are not paying rent during the pending unlawful detainer action, they want to delay the notion of settlement, will use the system and the calendaring of law and motion hearings to drag out the case, delay a trial date, and may not want to settle the case until they are in “settlement mindset”. Tenants usually want a cash for keys deal of some sort — it may or may not be reasonable. Tenant’s demand for a jury trial and the calendaring of a jury trial will provide the tenant with procedural and calendar leverage on the settlement decision and negotiation.
The concept of “leverage” in the negotiation of a settlement is very important. If a jury trial date is set, landlords will not have settlement leverage and need to take action to shift that leverage back to the plaintiff’s side. Two strategies are to serve some written discovery on the tenant, and, in the appropriate case, to calendar and file a motion for summary judgment which can be heard on 5 court day notice.
Having a mandatory settlement conference with a judge in the courthouse can be positive action to shift some leverage back to the landlord. The tenant will not want to listen to the landlord’s attorney, but the tenant may listen carefully to everything a judge says, including the suggestion of important settlement terms. If the tenant is tired of receiving discovery from the landlord and is fatigued from being in the court system, with the help of the settlement judge, the tenant may change his or her mindset to be in frame of mind and be ready for settling the case.
#2. Date and Time of Surrender of Possession of the Premises
The settlement must clearly identify the exact date and time the tenant will vacate and return possession of the premises, and how this is to be done (i.e. turning in the keys to the property manager). This is the most critical term in any unlawful detainer resolution. Without a definite surrender date, enforcement becomes uncertain, and the landlord may lose valuable time or risk a repeat dispute.
Avoid vague language such as “within a few days” — specify: “Tenant shall vacate the premises and turn in the keys no later than August 15, 2025, at 5:00 p.m.” This level of specificity is best to support enforcement through a writ of possession if the tenant fails to comply.
#3. Treatment of Unpaid Rent, Post Notice Daily Damages, and Other Monetary Obligations
The agreement must specify what happens with past-due rent, daily damages, late fees, unpaid utilities, or other unpaid monetary amounts. Is the tenant paying all of it or some amount over time? Are these components being waived entirely or reduced partially in exchange for moving out on time by a date certain? What benefit is the landlord receiving for this waiver?
If the tenant will pay, you need specific terms: how much, by what dates, and what form of payment is acceptable (e.g., certified cashier’s check). If rent is being waived, state that explicitly to avoid misunderstandings. This is also the place to address utility charges, parking fees, or any other costs that were part of the tenancy that are outstanding.
#4. Release of Claims and Waiver of California Civil Code § 1542
Today’s unlawful detainer defendant is tomorrow’s plaintiff who is offensively suing you and your trust or limited liability company (LLC) for a claim of harassment, breach of implied warranty of habitability, violation of a local ordinance, or personal injury, and or other claims.
A comprehensive settlement should include a general release of all claims under local, state, and federal law, a specific release of any claims and causes of action that the tenant has threatened to file or has filed, and an explicit waiver of Cal. Civil Code § 1542, which deals with unknown claims that could arise in the future. Please consult with legal counsel to understand the meaning and importance of a “1542 waiver.”
Without this provision, tenants could later sue over things like habitability issues, emotional distress, personal injury, harassment, or retaliatory eviction—even if they never brought them up during the unlawful detainer case. A waiver of Cal. Civil Code Section 1542 says and means that even unknown offensive claims at the time of the settlement agreement execution are being waived and released. The language should be as specific as possible. It can protect you and your organization from future surprise claims and lawsuits after you’ve already resolved the main issues in the unlawful detainer case.
#5. Waiver of Appellate Rights and Post-Judgement Motions and Trial Rights
After an eviction case has settled, a tenant can cause problems and headaches, and unnecessary legal expense by filing frivolous motions to unwind the settlement or stay enforcement of the writ of possession and a lockout. You need language to protect your rights and position. The tenant should waive their alleged defenses, right to appeal, right to file a writ of mandate, waive their right to a jury or bench trial, waive rights to file a motion to set aside the judgment, and waive their right to stay an eviction lockout. This may deter future actions by the tenant to try to reverse, unwind, or reopen the case and delay writ enforcement after the settlement agreement and stipulation is signed.
If you don’t include this language, a tenant could try to delay enforcement by filing motions or appeals, even if they have no legal basis. It costs you time and money. A strong and well drafted waiver provision may shut the door to this post settlement procedural stalling and gamesmanship.
#6. Attorney’s Fees and Litigation Costs
Liability for attorney’s fees and costs is an important major risk factor in the relationship between landlord and tenant and in settlement negotiation. Many municipal ordinances allow for an award of attorney’s fees and costs against the landlord if the tenant sues the landlord for “harassment” or charging excess rent, for example.
The agreement should clarify who is responsible for attorneys fees and court costs, if any. Oftentimes because the parties are settling, the agreement can state that “each party to this agreement bears their own attorney fees and costs.” It depends on the language you choose. The issue can follow the attorney’s fees provision in the rental agreement (which may award attorney’s fees and costs to the prevailing party), or it can state that each side pays their own attorneys fees and costs, or it can set forth a new method of shifting attorneys fees and costs for the tenant’s noncompliance with the terms and conditions of the settlement agreement.
You can negotiate a cap or ceiling on an award of attorney’s fees and costs if a party violates the terms of the settlement agreement and you need to enforce it. Your goal in settlement negotiation is to minimize or eliminate your exposure to attorneys fees and costs, and to get an award of attorneys fees and costs if the tenant violates the agreement. Having no cap or limit on attorneys fees and costs is risky for a landlord who is being sued by a tenant.
It is probably a good approach to have the ability to shift attorneys fees and costs to the defendant tenant if the tenant fails to vacate the property timely or otherwise violates the terms of the settlement agreement. This fee shifting provision should be set forth in the settlement agreement. If the tenant fails to vacate, you can seek an award of reasonable attorneys fees and costs incurred in drafting the agreement and filing a motion to enforce the agreement.
State in the agreement that if the tenant breaches the settlement agreement by not vacating timely, any cap of attorney’s fees in the rental agreement is not applicable and that the landlord can seek an award of reasonable attorney’s fees and costs for the tenant’s violation of the agreement, legal services to enforce the agreement, along with a money judgment for back rent (if that applies). But also consider is the tenant judgment proof or does the tenant have any assets at all to collect from? Does the tenant have wages that can be garnished? This collectability issue should weigh in your decision to aggressively seek an award of attorneys fees and costs and monetary damages from a defendant tenant.
#7. Move-Out Incentives / “Cash for Keys” Provisions and Arrangements
If you’re paying the tenant to leave voluntarily, be specific on dates, tasks, and obligations of landlord and tenant. The agreement should state the amount, the method of payment, and exactly what conditions must be met before the payment is made.
For example: “Landlord agrees to pay $1,500 in certified funds upon Tenant’s timely surrender of possession on August 15, 2025, and return of all keys, with the premises left in broom-clean condition.” This specificity helps avoid disputes later, especially if there’s a disagreement over whether the tenant actually complied.
Make sure your cash for keys provision complies with any local, city, county, or state law requirements.
I had a situation recently whereby a tenant was being difficult and refused to take the first cash payment in a cash for keys deal. He was trying to stall and delay the move out even beyond the stipulated move out date. In that situation, I would have a provision that says that if the tenant refuses to accept a payment, or otherwise breaches the agreement, the landlord is entitled to an immediate judgment for possession.
#8. Condition of Premises Upon Surrender of Possession
Include a clause requiring the tenant to leave the property in excellent, clean condition without committing intentional or negligent damage to the premises. Standard language might require the premises to be “in excellent broom-clean condition and free of personal belongings and trash,” with all keys returned, and free of damage.”
This isn’t just about cleanliness. If there’s damage to the premises or abandoned property left over at the premises, you need clarity on what your rights are. If the tenant causes extensive intentional damage, that claim should be carved out of and excepted from any form of release language. The more specific you are, the fewer problems you’ll face during the turnover and transition.
You can have a stipulation that if the tenant leaves personal property at the premises, that the property may be discarded within 18 days after telephonic or email notice to the tenant.
When the tenant vacates the property, it is an excellent idea to take pictures of the unit, any damage to the unit, and any personal possessions left there, and to carefully document leftover personal property, any damage, condition of the property, and the location of left-over personal items.
#9. Disposition of Security Deposit
The settlement must state what happens to the security deposit. Is it being returned? Applied to rent? Waived entirely?
If you want to waive the normal 21-day accounting period required under California law (Cal. Civil Code § 1950.5), both sides must explicitly agree to that. If not, you still need to send an itemized disposition. A clause that says, “tenant waives any right to a return of the security deposit” can resolve this, but it must be spelled out in the agreement.
#10. Entry of Judgement vs. Dismissal of Case
Decide whether the case will be dismissed (with or without prejudice) or whether a stipulated judgment will be entered, and when that will occur. One rule of thumb is that an unlawful detainer case should never be dismissed by the landlord “with prejudice” if the tenant has not vacated the premises and complied with other terms. Please discuss with your legal counsel in detail what the terms “dismissal with prejudice” and “dismissal without prejudice” mean.
A request for dismissal of the case filed in court by the plaintiff usually means the tenant complied with everything and you’re not seeking a judgment that goes on their record. But if you want to retain enforcement rights (like for future payments), or to seek a judgment for possession and a writ of possession, a stipulated judgment makes more sense for the plaintiff to lodge and file.
You can also sign a conditional stipulated judgment that only gets entered if the tenant defaults. Keep the language clear and simple- for example, “if the tenant fails to vacate by January 1, 2026, plaintiff receives an immediate judgment for possession and attorney’s fees and costs in the amount of $ 3,000.00, and a writ of possession is to be issued by the clerk forthwith.”
Always have a provision that the settlement agreement is enforceable pursuant to Cal. CCP Section 664.6. Even if a case is dismissed without prejudice, the Court retains jurisdiction to enforce the settlement agreement and enter a judgment for possession and or for money owed. You want the Court to have jurisdiction over the case until the case is fully completed.
#11. Conditional Judgement and Enforcement Mechanism
The agreement should include language stating that if the tenant fails to comply with any term—especially timely vacating the premises or making payments—then the landlord is entitled to an immediate judgment for possession (and sometimes money), without a trial.
This is often called a stipulated agreed on “conditional judgment” or “judgment upon default.” It allows the landlord to go back to court with a declaration stating that the tenant didn’t follow through and comply with the terms and deadlines, and request that judgment be entered automatically. That means no additional contested hearings, delays, or re-litigation—you already have the judge’s approval on file. The judgment can be entered by lodging the judgment, filing an ex parte motion, or a noticed motion.
#12. Request for a Confidential Record or to Seal the Record
By default, residential unlawful detainer cases are confidential- you can’t even look up the docket online unless you are a party to the case or an attorney of record. The clerk of the Court maintains confidentiality by statutory mandate. If the parties agree, the tenant may ask the court to seal the unlawful detainer case and keep it confidential after the case settles so that it won’t appear in public records or on tenant background checks. This may be an issue when the tenant is cooperating and is paying an amount owed for past due rent and daily damages.
Sealing the record is not necessarily guaranteed or automatic, and California courts may allow it under Code of Civil Procedure section 1161.2(2) if requested jointly—especially in settlements made early in the case. This can be a valuable bargaining chip in settlement discussions. Entry of a judgment may impact confidential nature of the case, and whether credit reporting companies report entry of a judgment.
If the tenant fails to move out timely or pay a settlement amount and fails to comply with settlement agreement, you can have the option to bring a motion to unseal the records on an ex parte basis. You can put that language in the settlement agreement. This is an added expense for the landlord, but it may be a procedural deterrent to force and compel the tenant to comply with the settlement agreement.
#13. Judicial Review of the Settlement Deal for Unrepresented Tenants
If the tenant is not represented by an attorney or even if the tenant has an attorney in Court, it’s best practice to have the judge review the specific terms of the settlement agreement on the record in court with the tenant. The judge should ask the tenant if they understand the agreement and what their obligations and responsibilities are pursuant to the terms of the settlement agreement.
The Court should review on the record in open court the tenant’s move out date and other time sensitive requirements, like payment due dates. The Court should explain in plain English that the parties are waiving certain rights, such as the right to a jury trial. The Court is providing actual notice to the tenant of the terms and conditions, and the tenant will receive a copy of the written agreement.
This protective measure prevents the tenant from later claiming with any credible argument they didn’t understand the terms or were pressured into signing. Judges will typically ask a few specific questions to confirm the tenant understands what they’re agreeing to, and if the parties have personally signed the stipulated agreement, if the parties have any questions, and if the parties understand their obligations. This makes the stipulated settlement agreement much harder to challenge later.
After the settlement agreement has been signed, the Court can set a follow-up hearing to monitor the status of the settlement, and to see if the tenant has vacated and to determine what else needs to be done.
#14. Confidentiality and Non-Disparagement
The tenant wants to keep the case confidential, avoid negative personal credit reporting, and does not want to have a prior landlord provide a negative reference. Often times the tenant deserves a negative reference if they failed to pay rent for a long time or have been a repeated nuisance at the premises or they violated the terms of the settlement agreement. The tenant will always want to have the record confidential and sealed. I would have an “escape clause,” such that if the tenant does not move out timely or materially breaches the agreement, the tenant waives the confidentiality provision.
The landlord may want to keep certain terms confidential such as if the tenant received a cash for keys deal or other compensation or other incentive to vacate. Tenants like to brag about their cash for keys deals with their neighbors and friends. You can have confidentiality provision such that the tenant shall not disclose, state, or publish the terms to other tenants, third parties, or on public forum such as on the internet or a blog, and that the landlord has any remedy available under state law to enforce that provision.
#15. Default Clause and Enforcement Provisions
The agreement should define specifically in simple plain English terms what constitutes a “default” or “breach” in compliance with the terms of the stipulated settlement agreement (for example, missing a payment or failing to vacate in a timely manner), and state that time is of the essence.
This means the performance deadlines in the agreement matter and are material terms. If the tenant misses a date or fails to perform on time, you need to have the right to enforce the agreement immediately. You can go into court with an ex parte motion. It also helps refute and defeat any later arguments that the tenant should get more time.
You should have a clause to enforce the agreement and stipulation by way of lodging a stipulated judgment, filing an ex parte motion, and or filing a noticed motion, and the Court retaining jurisdiction under Cal. CCP 664.6 to enforce the terms of the settlement agreement and enter a judgment. If a judge was assigned the case and has supervised the settlement, it is best to have the same assigned judge hear your motion to enforce the settlement agreement.
#16. Parties to the Agreement
You want all the tenants who are parties to the lease or rental agreement to be party to the settlement agreement, and to personally sign the written agreement, and to be bound to the agreement. Perhaps you want a guarantor to be liable for a future financial obligation. The guarantor needs to sign the agreement. If the property has multiple owners, the owners and even property managers and other partners can be party to the agreement and a release to protect against an aggressive tenant bringing future lawsuit claims. Strive for the maximum protection from the threat of tenant claims and lawsuits.
You can also include a provision that states that if you obtain a judgment for possession it applies to “all others in possession” pursuant to Code of Civil Procedure section 415.46. Pursuant to Code of Civil Procedure sections 715.010 and 1174.3, a writ applies to all tenants; subtenants, if any; named claimants, if any; and any other occupants of the premises. When you serve the unlawful detainer lawsuit you must also serve the judicial council form CP 10.5- Prejudgment Claim of Right to Possession Form, and if no person files a claim in the case, then you file a request for default of “all others in possession.”
#17. Signature of the parties and contact information.
Obtaining live, wet signatures are very important to make the settlement agreement and stipulation binding. You want to get the tenant’s signature in a wet signature format. In addition, obtain the tenant’s current and updated contact information such as email address, cellphone, workplace location, and work phone numbers and forwarding address. Also, it is recommended that the landlord or a manager with corporate authority or LLC authority sign the agreement. Any amendment or modification to the settlement agreement must be in writing and signed by both sides.
#18. Language Barriers and Solutions
If the tenant does not speak English and or write English as their first language, the tenant should obtain the services of an interpreter or an attorney that speaks their language. The same is true if the landlord or landlord’s property manager or agent needs a language interpreter. Often times, the services of an interpreter are available by the courthouse staff. You can put in the agreement that the tenant has the right to have the agreement reviewed with an interpreter.
Final Thoughts
By addressing these settlement terms and issues, landlords can strive for settlement agreements that are well drafted, that help you achieve the goals of the case and specific situation, and that can limit exposure to future claims. These provisions help avoid post-settlement disputes, reduce the likelihood of a successful tenant challenge of a settlement provision, and provide a clear roadmap for regaining control of the premises and enforcement of judgments. Since settlement is a more cost effective alternative to completing a jury trial or a bench trial, the details matter — and every agreement should be drafted with precision and foresight, and with assistance of your own counsel.
Author Bio
Nate Bernstein, Esq., is the Managing Counsel of LA Real Estate Law Group, and a member of the State Bar of California and his practice concentrates in the areas of complex real estate title litigation, commercial litigation, landlord tenant law, employment law, and bankruptcy matters. Attorney Bernstein served as in house corporate litigation counsel at Fidelity National Title Insurance Company, and represented the company subsidiaries and insured major institutional secured lenders. He is a 32 year veteran Los Angeles real estate and business attorney and trial lawyer. Mr. Bernstein also has expertise in bankruptcy law, the federal bankruptcy court system, creditor’s rights and out of court workout solutions. He serves as an expert witness on real estate, title, joint venture, and other business relationship dispute issues.
Mr. Bernstein, a frequent speaker at apartment owners association seminars, and has been a featured speaker with the California Associations of Realtors, Apartment Owners Association, AAGLA, AAOA, the Collateral Lenders Association, and the Beverly Hills Bar Association. He created www.laquiettitleattorney.com, a leading educational resource on quiet title real estate litigation.LA Real Estate Law Group handles litigation matters in Los Angeles, Ventura County, Orange County, Inland Empire, and San Diego. For more information or to schedule a professional consultation, please contact the office at (818) 383-5759, or email [email protected].
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