Notices Used By Landlords

(In California)

Notices, with limited exceptions, are the foundation of a legal eviction proceeding. It helps, of course, that someone is holding adverse possession also. This newsletter addresses some of the general notices used in California today.

Notices come in two varieties. The first is an "alternative" notice. The two most commonly used alternative notices are the Notice to Pay Rent or Quit and the Notice to Perform a Covenant or Quit. The second most common variety of notices are simply "termination or quit" notices. For example, a Three Day Notice to Quit, a Thirty Day Notice to Quit, a Sixty Day Notice to Quit and a Ninety Day Notice to Quit. Each of these Notices meet the demands of a particular fact situation. Tenant issues vary greatly, hence the need for different types of notices.

Notices to Terminate and Notices to Perform are governed by California Civil Code of Procedure §1161 and Civil Code §1946.

More than one notice can be served on a tenant at the same time. A word of caution is appropriate, however. If a Thirty Day Notice and a Three Day Notice to Pay Rent or Quit are served at the same time, the Three day Notice to Pay should not ask for rents beyond the last day specified by the Thirty Day Notice to Quit. Otherwise, if the rent is paid, the Thirty Day Notice is canceled because rent has been accepted for a time period beyond its application. The landlord cannot be heard to accept the rent for a time in the future and then evict the tenant once it has been paid. This sort of conduct by the landlord would put hm in a legal "pickle" because he served the Notice to Pay Rent or Quit and, having demanded the rent, he has to accept it within the three days following service. In other words, the Notices served should not be at cross-purposes of each other.

ALTERNATIVE NOTICES

A Notice to Pay Rent or Quit is the alternative notice most often used. Over the years its required contents have been augmented again and again. Presently it requires the following:
1) The names of the tenants/subtenants and the address of the real property,
2) The amount of the rents due,
3) The location where the rent will be accepted,
4) The hours when the landlord/rental agent is available to accept the rent and
5) the landlord's/rental agent's telephone number.

If the rent is mailed, then remember that rent is deemed received when the check is placed in the U.S. mail. The burden of proof is on the tenant to establish that it has been mailed, but he/she has the advantage. The landlord will invariably testify that "I didn't receive it." The tenant will testify: "I mailed it and here's the receipt for postage." Normally the tenant is in a position of greater strength in this situation because the Judge is looking at a piece of paper and listening to words. The landlord only has words.

The second most commonly used alternative notice is a Notice To Perform a Covenant Or Quit. For this notice to be useful there must be a written rental agreement. This type of notice identifies the tenant, the property, and the lease agreement and cites to the term of the lease agreement that is being breached. The notice does exactly what it says it does. It gives the tenant three days in which to perform a particular covenant or quit the property. It is used, for example, where the lease/rental agreement says no pets and the tenant has pets. It gives the tenant three days to get rid of Scratch, the mutt, Furball, the cat or Slinky, the Python. The use of this Notice requires a specific clause in the lease that is being violated by the tenant. The landlord at trial will testify that after the three days the tenant continued his wicked ways by harboring the dog/cat. Landlord, please be ready to prove the continued breach. From an attorney's point of view, pictures are really nice.

NOTICES TO QUIT

There are a variety of these Notices, each having its own purpose. The most draconian is the Three Day Notice to Quit. This Notice is used where no performance alternatives are available; for example, in a foreclosure situation where the borrower remains in the property after the foreclosure sale. (This does not apply where the tenant in possession is not the borrower and is a renter.) It is also used where a nuisance is being committed or maintained on the demised property; for example, conducting an illegal activity such as selling a controlled substance or any illegal activity such as gambling or prostitution, growing and selling cannabis, selling coke or heroin and the like. When it comes to proof, police reports presented by the arresting officer are really nice.

The Thirty Day Notice to Quit, Sixty Day Notice to Quit and Ninety Day Notice to Quit are used simply to terminate a tenancy, no questions being asked, no reasons being given. Even in these simple situations there are exceptions to the rule.

A note for the record: These notices may be used as prescribed by statute without any reason being given as long as the reason is not the wrong reason. In other words there are reasons that cannot be reasons, such as race, religion, sex, gender, ancestry, and prior political affiliation. There can be a whole list of wrong reasons. At the same time be aware that any reason is a good reason (as long as it isn't the wrong reason) including the landlord just didn't like him/her that day or the tenant gets too much mail on the 4th of July or his mother is buried at the Custer National Cemetery. This topic is so important, let me say this differently. The real issue is retaliation. Broadly stated, if the landlord seeks to evict because the tenant exercised a lawful right then the landlord is in trouble. Retaliation is a defense. California Civil Code §1942.5 speaks to this defense. The defense doesn't stop with the statute. Together with the statute there exists a wide array of common law defenses that encompass retaliatory evictions including those listed above.

The funniest retaliatory defense our office experienced was actually one for habitability. In this case the Court decided to go look at the premises. The tenant had reported an infestation of rodents to the local county inspector. They were served a Thirty Day Notice to Quit. The tenant screamed retaliation. The Court, the bailiff, the clerk, the plaintiff, the tenant and two attorneys went to the house. The tenant had gone to the local pet store and purchased white rats, the ones with the pink eyes. When this group entered the house all of those little white rats came up to them. They were hungry and concluded they were going to be fed. After all, in their experience, what were humans for? The infestation was self induced.

The worst I saw was in a case in which the sewer drained right in front of the kitchen sink window. The authorities were notified. The inspector came. The house was condemned and the notice was served. The landlord lost. I had mixed feelings about that case. Regardless of the outcome who would want to live there?

The Thirty Day Notice may be used to terminate a tenancy where the tenant has not been a tenant for over one calendar year. If he has, then he is entitled to a Sixty Day Notice. A Sixty Day Notice may also be used in a foreclosure situation where the tenant was the tenant of a former owner. A Ninety Day Notice is used when the tenant is a tenant of a former owner who was foreclosed on and had been a tenant prior to the Notice Of Default being recorded.

There are exceptions to these rules. Ironically, most are set forth in HUD agreements. This is an entirely different can of worms and will be treated elsewhere. Suffice it to say that HUD agreements have a different criteria for termination of a tenancy. The reasons, again, cannot be the wrong reasons and there are fewer right reasons. Fortunately, the HUD agreements spell out which are right and which are wrong. Most of the time the HUD people are agreeable and something can usually be worked out.

Sample Notice forms be found at groverrhowe.com.