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Land lord said he was coming by to Leave "pay or quit", instead left me with 3 days to vacate. Is this legal? Please help!

Winnetka, CA |

I had given my thirty day notice last month that i was planning on moving by 2/20/2013, I am late on paying rent this final month and my landlord said he would be by to serve " pay or quit" notices. When I got home there was a " Landlord notice to Vacate" on my door stating that I had 3 days to vacate the property and leave the keys by 2/06/2013, this letter was given to me on 2/04/2013. No where on this notice does it say that it is a "pay or quit "notice nor does it even give the option to pay, it only says I have 3 days to vacate. Under detail regarding the vacate he put " unpaid rent for February($625)" . My 6 month lease is up and I am currently on a month to month basis, what does this letter mean in terms of me having to pay and security deposit , or is this even legal?

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Attorney answers 3

Posted

No, it is not legal. The three-day notice must give you the choice between paying and quitting.

Posted

As a practical matter, you should attempt to pay your rent regardless of the apparently improper notice in order to prevent an eviction. Unfortunately, without reading the terms of your lease, it is impossible to know if you are liable for rent for the full month of February or only until February 20.

Finally, although your security deposit can be applied to unpaid rent under Civil Code 1950.5, your landlord must refund the balance of your security deposit within 21 days of your move out. Further, your landlord may only deduct from your security deposit specific items like unpaid rent and repair of damage beyond normal wear and tear. Otherwise, you may have a claim for bad faith retention of your security deposit.

Posted

There are so many things wrong with this notice. As my esteemed colleagues have advised, a notice demanding rent must be in the form of the alternative (ie, pay "or" quit). Further. if the notice was given to you (and dated) 2/4/13, then it does not expire until the end of the day 2/7/13.

Again, try and comply with the bad notice to avoid further action. In the alternative, write the landlord (keep a copy) and let him know all the reasons the notice is bad. Offer to have him use your security for unpaid rent and see of you two can work out terms. Everything in writing! Be ready to comply if and when you are served a proper notice.

If the landlord files an unlawful detainer (attaching the 2/4 notice), your response should be in the form of a demurrer. If you are low-income, call or visit a local legal aid clinic for advice on its preparation; if not, you need an attorney (and that will cost a lot more than $625).

James Carl Eschen III

James Carl Eschen III

Posted

I agree with everything but the word "demurrer." The proper procedure is a motion to quash. A complaint based on this notice would state a cause of action in that the poster still owes the money. But, because the notice is defective, it would not state a cause of action in unlawful detainer.

Erin Patricia Farley

Erin Patricia Farley

Posted

A demurrer is filed when the tenant says that the landlord did not have enough in the eviction notice or in the Complaint to justify an eviction. A motion to quash service is filed when the tenant says that the landlord did not serve the Summons and Complaint properly.

James Carl Eschen III

James Carl Eschen III

Posted

See Delta Imports, Inc. v. Municipal Court (1983) 146 Cal.App.3d 1033: because a demurrer can only be sustained if the complaint fails to state a cause of action at all, a motion to quash is necessary when the complaint does state a cause of action but reveals that the unlawful-detainer procedure is unavailable because the notice is invalid.

Erin Patricia Farley

Erin Patricia Farley

Posted

Good stuff, but I think we disagree on form rather than substance. Either can be used, I prefer demurrer because the MTQ is subject to the expedited time limits and the demurrer is not. To be “demurrer-proof,” a form complaint must state all facts essential to a cause of action under existing statutes or case law. People ex rel Dep’t of Transp. v Superior Court (1992) 5 CA4th 1480, 1484–1486, 7 CR2d 498. The defendant may file a motion to quash service, instead of a demurrer, to test whether the complaint states a cause of action for unlawful detainer and justifies issuance of a summons with the five-day response time. Smith v Municipal Court (1988) 202 CA3d 685, 688, 245 CR 300; Delta Imports, Inc. v Municipal Court (1983) 146 CA3d 1033, 1035, 194 CR 685

James Carl Eschen III

James Carl Eschen III

Posted

Even if the notice is bad, a form UD complaint still states a cause of action: the tenant was supposed to pay rent on the first, and did not. The remedy is not part of the cause of action.

Erin Patricia Farley

Erin Patricia Farley

Posted

As fun as this is, I have work to do. Let's agree to disagree.

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