Which is “better”: a 5-Day Notice to Pay or Quit or a Notice of Abandonment? (updated 03/18/2020)
The 5-Day Notice to Pay or Quit.
A 5-Day Notice to Pay or Quit (referred to herein as a “5-Day Notice") can be served upon a tenant as soon as rent is delinquent. If rent is due on the first day of the month and is not paid on or before the first day of the month, then the landlord may serve the tenant with a 5-Day Notice on the SECOND day of the month, but could also serve the tenant on any day after the second day of the month. Make a decision now regarding when you will serve the notice and be consistent for ALL tenants, otherwise, you may run into allegations of unlawful discrimination.
What if there is a late fee provision? No difference. A late fee provision specifies when late fees will be assessed and the amount thereof. If rent is due on the first day of the month and late fees don't start until the tenth day of the month, the 5-Day Notice may still be served on the SECOND day of the month. A lease is not required to have a late fee provision and many lease forms do not include a late fee provision. If the late fee provision had any impact on when the 5-Day Notice could be served, then rent would never be delinquent in a lease with no late fee provision.
The Notice of Abandonment.
A Notice of Abandonment can be served on the tenant if the tenant is absent from the dwelling unit without notice to the landlord. When you can serve this notice is determined by how long the tenant is absent, how long rent has been delinquent, and whether there is any personal property inside the rental unit. The Notice of Abandonment can be served if the tenant is absent from the rental unit without notice to the landlord: (1) for seven days, if rent is delinquent for ten days, and there IS personal property belonging to the tenant inside the dwelling unit OR (2) for five days, if rent is delinquent for five days, and there IS NO personal property belonging to the tenant inside the dwelling unit. What if the facts allow either/both notices to apply? A landlord may serve a 5-Day Notice or a Notice of Abandonment if the foregoing requirements are met. Sometimes both will apply. For example, if rent is delinquent five days, the tenant has been absent from the dwelling unit without notice to the landlord for five days, and there is no personal property inside the dwelling unit, then the landlord could issue a 5-Day Notice OR a Notice of Abandonment. Measured against the foregoing criteria, both seem to apply. So what should the landlord do? Which is the better choice? My recommendation is to do BOTH. If you just do the Notice of Abandonment and the tenant shows up three days later, you cannot proceed with the abandonment and you have lost three days because you did not serve a 5-Day Notice at the same time as the Notice of Abandonment. If you serve both notices at the same time, you can defer the decision on which course of action to pursue until five days later. My recommendation: If both notices apply, then serve both notices at the same time.