How To Start An Eviction For Non-Payment Of Rent
A general description of how to start an eviction for non-payment of rent.
The Contents Of A "Three Day Notice"California Code of Civil Procedure Section 1161(2) provides the outline for starting a non-payment eviction. If a tenant fails to pay as required under the lease, the landlord (or its agent) can give the tenant a three day notice to pay rent or quit. The three-day notice must state the following: (a)the amount of rent that is due; (b) the name, telephone number, and address of the person to whom the rent payment shall be made, and (c) if payment may be made personally, the usual days and hours that person will be available to receive the payment (with special rules if payment cannot be delivered personally or if payment is to be made directly to a bank account, or if payment is by an electronic funds transfer).
The three-day notice should provide that the tenant must either pay the rent or vacate the property; the pay OR quit portion of the notice is crucial. Notices that are not phrased in the alternative are void. Often three-day notices state that a tenant's failure to pay or quit will result in the landlord initiating legal proceedings to declare forfeiture of the lease and to recover possession of the property.
A three-day notice may also have additional requirements under local law. For example, San Francisco requires delivery of a multi-language form under the San Francisco Rent Ordinance Section 37.9(c).
The back rent demanded in a three-day notice may be up to 1 year. In commercial three-day notices, the landlord can provide a "reasonable estimate" of the rent due. See Code of Civil Procedure Section 1161.1. In residential three-day notices, the rent due should be precise and must not be overstated. Overstating the amount of rent due by even a dollar can have disastrous consequences for an eviction.
How To Give The "Three Day Notice" To The TenantThe three-day notice, if applicable to a residential lease, must be served via (a) personally giving the notice to the tenant, (b) if the tenant cannot be found, leaving a copy with a person of suitable age and discretion at the tenant's residence or usual place of business AND mailing a copy to the tenant's residence, or (c) by taping a copy of the notice to the tenant's residence, AND mailing a copy to tenant's residence. Option (c) is only permissible if options (a) and (b) cannot be effected.
A three-day notice for a commercial lease may be served in the same manner as a residential three-day notice. It also be served in the manner permitted by the commercial lease (for example, via regular mail).
Final ThoughtsA three-day notice begins running the day after the notice is served and expires at the end of the day three days later. For example, a notice served on a Monday morning expires on Thursday night).
If the tenant attempts to pay rent in full before the notice expires, the landlord must accept the rent. The landlord's acceptance of rent, even if it not the full amount of rent, after the three-day notice expires waives the landlord's three-day notice. If the notice expires without the tenant paying rent, the landlord may file an action for eviction.
It is advisable to have a lawyer review and approve the form of the three-day notice, since a defect in the three-day notice may result in the tenant winning the eviction case - even if the tenant has not paid rent!