Terminating the Landlord Tenant Relationship in San Diego, California
Terminating the Landlord Tenant Relationship in San Diego, California
Three-Day, 30 Day, and 60 Day Notices
Before the landlord can file an Unlawful Detainer lawsuit, the landlord must terminate the tenancy. If the tenant has a month-to-month tenancy, known as a periodic tenancy, and has occupied the premises for less than a year, then the landlord must give 30 days notice. This notice doesn’t have to be given at the beginning of the month. If the tenant has occupied the premises for a year or more, then the landlord must give 60 days notice. If the tenant violates the terms of the lease, such as to pay rent, then the landlord can serve the tenant with a 3-day notice to correct the problem.
The three-day notice is appropriate where the tenant is in violation of the lease, causing great damage to the property (waste), or creating a nuisance. A nuisance is some action by the tenant that interferes with the neighbors right to enjoy their property. An example would be a tenant who routinely plays loud music. The tenant who is causing damage or creating a nuisance is served with a Three-Day Notice to Perform Covenant or Quit. This notice basically says correct the behavior in 3 days or the tenancy is terminated. So if the tenant has a pet in violation of the rental agreement, then this notice gives the tenant an opportunity to get rid of the pet and comply with the lease. There are circumstances where the landlord doesn’t need to give the tenant the opportunity to correct the problem, such as a tenant using the property for illegal purposes or a tenant who has sublet the entire premises.
When the tenant fails to pay rent, the tenant is served with a Three-Day Notice to Pay or Quit. An example of a Three-Day Notice to Pay or Quit can be found on a link above. The California Code of Civil Procedure is very specific as to what is required in this notice and how it is served. If done incorrectly, then the landlord could end up back at square one of the eviction process. Worse yet, it could render the lawsuit defective and the landlord could end up paying court costs to the tenant. The notice must contain: the tenant’s name and the names of all adult occupants, regardless of whether they signed the original lease; The property address must be listed; A demand to pay the stated rent or move out; A statement that you will pursue legal action or declare the lease forfeited if the tenant does not pay the rent due or move; Information as to name, telephone number, and address where to pay the rent; and finally, a signature by the landlord. The notice can state a financial institution with account number as the place to pay, but only if it’s located within five miles of the premises.
It is important to note that only rent due can be demanded. If the landlord demands one penny more, then the notice is defective. That means that if the lease addresses things like late fees and utilities, those amounts would be inappropriate to demand in a Three-Day Notice to Pay or Quit. If the rent is due on the first of the month, the Three-Day Notice to Pay or Quit can demand this entire amount and is not based on the date the notice is served.
Landlords should also be aware that a New York court found that a Three-Day Notice signed by someone other than the landlord triggered the Fair Debt Collection Practices Act. The net effect of this is that the lawsuit is no longer a summary proceeding and the debtor has 30 days to respond. This application hasn’t been found in California yet, but it certainly could be.
The Notice can be served any day after rent is due. If the landlord routinely accepts the rent a few days late, this could pose a problem if the notice is served during this time. The tenant could claim that the landlord waived that portion of the agreement and the tenant relied on this to their detriment. To prevent this “estoppel defense" it is best to wait beyond any traditional “grace" period. As pointed out in the earlier section, it is best to state in the rental agreement that any acceptance of late rent doesn’t constitute a waiver of the due date.
The notice can be served by anyone, including the landlord. The best method is to have someone who is 18 or older serve each tenant the notice. If the tenant refuses to accept the notice, it is acceptable to drop it at their feet. If they close the door before one can serve the notice, it is also acceptable to slide it under the door and state that you’re “leaving the notice" for them. If you attempt to serve the notice but the tenant never seems to be home, substituted serve is allowed. First try and serve the tenant at home and at work, more than one attempt is needed, and then the notice can be left with an adult at the home or workplace and copy is mailed to the tenant at home by first class mail. Lastly, if nobody is at the home, or a work address isn’t known, then one can serve the notice by posting a copy on the front door and mailing a copy by first class mail.
It will be required to attach a copy of the three day notice to the Unlawful Detainer lawsuit and the method of service will need to be stated or a copy of a “proof of service" attached. Your course of action will now be determined by how the tenant responds to the Three-Day Notice to Pay or Quit. If they fail to pay and they don’t move out, then landlord will need to file a lawsuit. The earliest an Unlawful Detainer complaint can be filed is after three days plus the day of service. For example, if the notice is served on a Monday, that day isn’t counted. The tenant then has 3 full days to pay or quit, or by the end of Thursday. This means that Friday would be the earliest one could file the complaint. Do not accept rent after the 3 days unless you want to continue the tenancy. You will be unable to evict the tenant after you have accepted rent.
As a strategy, it is usually prudent to serve a Three-Day Notice. There are times where it would be better to serve a 30 or 60-day notice. If a landlord is evicting a tenant for violating a lease term, waste, or nuisance, it is important to understand that the burden of proof is on the landlord. If the tenant isn’t late on rent and the lease term has expired, then the periodic tenancy can be terminated with a 30 or 60-day notice, as appropriate. The 30 and 60-day notices can be served on any day of the month. It is important to then count 30 or 60 days after the service to determine the ending date. It is best to serve this notice right after rent is received.
San Diego’s “Just Cause" rules apply where a tenant has occupied the premises for two years. If the occupant has been there less than 2 years, then the landlord can evict without giving a reason, but it cannot be for a wrong reason. A tenant could then, for example, claim a defense of a retaliatory eviction or discrimination.
As a footnote, this is a good place to address security deposits. If the tenant does move out, and the landlord is in possession of the premisses, then the landlord must provide an accounting to the tenant within 21 days of their vacating, along with any refund due. California allows the landlord to deduct any unpaid rent, cleaning costs, and repairs beyond normal wear and tear. The landlord must attach receipts to the accounting, and if they performed the work themselves, then it must state the time spent and the hourly rate charged. The hourly rate must be reasonable. If the tenant doesn’t provide a forwarding address, then the statement must be mailed to the address of the rental unit.
Please see the next part of the "Guide" or www.sandiegoevictioncenter.com for more information.
The information on these pages is to help in understanding the legal process in some aspects of Landlord Tenant law. The information here is not the same as legal advice, which is unique to each set of facts. You must consult with a lawyer to determine the appropriate action in your specific case.
Scott R. Rights, Esq.