I have a client that was served a 3-day notice on the 2nd of the month yet the grace period is until the 5th for rent to be paid. Then since the notice was given, a UDR was filed under the landlords name rather than the dba. Are these valid defenses in an answer and at court if not resolved prior? Can one be used and not both?
This answer assumes that the tenancy is for a residential dwelling. Although residential tenancies typically state that is is due on the first and late if not paid by the 5th day of the month, you should carefully examine the written rental or lease agreement to determine the due date of rent and the grace period. If the tenant paid the rent on or before the 5th, the premature service of the three day notice to pay rent or quit would have no consequence because the rent was timely paid.
If the individual name of the Landlord is shown as the owner of the property on the deed (which is a public record), but the Landlord does business under a fictitious business name for the rental property, The UD complaint should give the name of the Landlord doing business as " the fictitious name", as Plaintiff in the lawsuit. The failure to include this allegation, and compliance with the fictitious business name filing requirement renders the Complaint legally deficient. Both the premature service of the 3 Day Notice to Pay Rent or Quit, and the failure to properly allege compliance with the fictitious business name filing requirement should be stated as affirmative defenses in the Answer to the UD Complaint.
Maurice A. Priest
Real Estate Attorney
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