1. WHAT INFORMATION NEEDS TO BE ON A THREE DAY NOTICE TO PAY RENT OR QUIT?
As of January 1, 2003 all three day notices to pay rent or quit must include the following information: name and address of the landlord, a phone number where the landlord may be contacted by the tenant, the notice must specify how the rent is to be paid, either in person or by mail. If the rent is to be paid in person, the landlord must specify days and hours that they are available to accept the rent (i.e., Sunday thru Monday from 9:00 am to 12:00 pm). Keep in mind the time block must be at least three hours.
2. THERE ARE OTHER PEOPLE LIVING IN THE PROPERTY AND I DON'T KNOW THEIR NAMES, WHAT DO I DO?
When serving a notice on a property that has unknown people living in the property, you serve the notice on the tenants whose names you have and then you put the phrase "Does 1 to 10 inclusive". This will cover all unknown occupants.
3. MY TENANTS ARE NEVER HOME OR WILL NOT ANSWER THE DOOR WHEN I GO TO SERVE THE NOTICE, WHAT DO I DO?
You can do one of two things: you can either serve the notice to a person over 18 years of age if someone answers the door and mail a copy to the property, OR you can post a copy of the notice on the door and mail a copy to the property. As long as you mail a copy of the notice to the property, both of these methods are considered legal service. With unlawful detainer law, you do not have to personally serve the tenants with the paperwork.
4. MY CONTRACT SAYS I CAN CHARGE LATE FEES. CAN I PUT THEM ON A THREE DAY NOTICE TO PAY OR QUIT FOR A RESIDENTIAL PROPERTY? WHAT ABOUT FOR A COMMERCIAL PROPERTY?
You cannot ask for late fees on a residential three day notice to pay rent or quit. The notice can only ask for the rent that is owed for the month. If you have a covenant in your contract that deals with late fees, you may serve your tenant with a separate notice asking for the late fees. This notice is called a three day notice to perform covenants or quit. What you do is cite the covenant on the notice and then put the amount owed for late fees for that month.
However, you can ask for late fees on a commercial three day notice to pay rent or quit - despite the absence of any specific covenants calling for them.
5. MY TENANT IS SUPPOSED TO PAY THE FIRST HALF THE RENT ON THE 1ST OF THE MONTH, AND THE SECOND HALF ON THE 15TH. IT IS NOW THE 18TH AND THEY HAVE NOT PAID THE SECOND HALF'S RENT THAT WAS DUE ON THE 15TH. WHAT DO I DO?
Serve them with a three day notice to pay rent or quit for the 15th of the month to the end of the month.
6. CAN I SERVE A THREE DAY NOTICE TO PAY RENT OR QUIT ON THE FIRST OF THE MONTH?
If the rent is due on the first, you may not serve a three day notice to pay rent or quit until the 2nd day of the month. This is because the rent is not late until the 2nd, so you may not ask for it until then. The tenant has the entire day to get the rent to you before it is considered delinquent.
7. THERE ARE PEOPLE LIVING IN MY RENTAL UNIT WHO ARE NOT ON THE LEASE. WHAT DO I DO?
Serve the tenants that are on the lease with a three day notice to perform covenants or quit. You need to cite the covenant that states they are violating the lease by having additional people living in the property.
8. MY TENANT REQUESTS REPAIRS EVERY TIME THE RENT IS DUE, THEN WON?T LET ME IN TO MAKE REPAIRS. WHAT DO I DO?
You need to document that you have tried to make appointments to see about the repairs and you need to make three attempts. If the tenant is still not cooperating with you, then you can go ahead and serve them with a three day notice to pay the rent or quit. But you need to have documentation showing that you made at least three attempts to resolve the issue.
9. MY TENANT HAS CALLED CODE ENFORCEMENT. WHAT DO I DO?
You need to contact code enforcement and get a copy of the repairs that need to be done. Then you need to fix the repairs that are considered habitability issues first, and then fix the remaining problems. You cannot serve a notice asking for money when there are habitability issues on a property.
10. THE TENANT HAS A LOT OF PEOPLE COMING AND GOING TO THEIR APARTMENT AT ALL HOURS. WHAT DO I DO?
If the tenants are on a lease, you need to serve them with a three day notice to quit for breach of quiet enjoyment. If they are not on a lease, then you may serve them a 30-day notice to quit If you serve them with a notice to quit, I would anticipate that they will not pay the rent so you may also serve them a three day notice to pay rent or quit when their rent is late.
11. WHEN DOES THE 3-DAY NOTICE EXPIRE?
When you serve a three day notice to pay rent or quit, you cannot start counting the day until the day after service of the notice. For example, if you serve a three day notice on the 2nd and the tenant was instructed to pay in person Monday thru Sunday from 9:00 am to 12:00 pm, you would start counting on the 3rd. The notice would expire on the 5th and you would be able to file your case on the 6th. But, if the notice expires on a weekend, you have to give the tenant the following Monday. For instance, if the notice expires on Saturday, you have to give the tenant that following Monday and then you could file your case on Tuesday.
12. WHEN CAN I SERVE A TENANT A 30-DAY, 60-DAY OR 90-DAY NOTICE TO QUIT? WHY DO I HAVE TO SERVE DIFFERENT LENGTHS OF NOTICES?
If a tenant is on a month-to-month tenancy, you may serve that tenant with a 30-day notice to quit.
If you have tenants that are on Housing Assistance and they have been in the property for less than a year and they are on a month-to-month tenancy, you have to serve them with a 60-day notice to quit. If you have tenants that are on Housing Assistance and they have been in the property for more than a year and they are on a month-to-month tenancy, you have to serve them with a 90-day notice to quit.
13. CAN I PUT UTILITY CHARGES ON A RESIDENTIAL 3-DAY NOTICE? ON A COMMERCIAL NOTICE?
You cannot put utility charges on a residential three day notice to pay rent or quit. If your contract deals with utilities, you can serve your tenants a three day notice to perform covenants or quit and you would have to cite the covenant on the notice and put the fees owed for the month.
However, you may ask for utility charges on a commercial three day notice to pay rent or quit, if it is stated in your lease.
14. IF I SERVE A TENANT A 30-DAY NOTICE TO QUIT AND IT TURNS OUT THAT IT SHOULD HAVE BEEN A 60-DAY NOTICE TO QUIT, CAN I JUST SERVE THEM ANOTHER 30-DAY NOTICE TO QUIT?
NO. You must re-serve your tenants with the proper 60-day notice to quit.
15. HOW MUCH CAN I RAISE MY TENANTS' RENT IF THE PROPERTY IS IN A NON-RENT CONTROL AREA? AND HOW OFTEN CAN I RAISE MY TENANTS' RENT?
You may raise your tenants' rent ten percent by giving them a written 30-day notice of change in terms of tenancy. You may raise the rent every six months. If you choose to raise the rent more than ten percent, you have to give the tenants a written 60-day notice of change in terms of tenancy. ***Please note that any excessive increase may not be granted by a judge if your case ends up going to trial.
16. HOW MUCH SECURITY DEPOSIT CAN I CHARGE?
If your unit is furnished, you can ask for three month's worth of rent. If your unit is unfurnished, you may ask for two month's worth of rent.
17. HOW LONG DO I HAVE TO ACCOUNT FOR THE SECURITY DEPOSIT ONCE THE TENANT IS OUT? AND WHAT CAN I TAKE OUT OF THE SECURITY? WHAT HAPPENS IF I DO NOT HAVE THE TENANT?S NEW ADDRESS?
Once the tenant has vacated the property, you have 21 days to account for the security deposit. You must send the tenant an itemized list with prices of what the security deposit was used for and any left over sums.
A security deposit can be used to cover any damage to the property that is not considered normal wear and tear, as well as any back rent owed. If the security deposit does not cover the damage and the amount is under $5,000, you may go to small claims court and obtain a judgment against the tenants for the amount owed.
If you do not have a new address for the tenant, then you need to mail the security deposit to the old address (i.e., the address they were evicted from).
18. DO I HAVE TO HAVE A REASON TO EVICT MY TENANTS?
NO. When you serve a tenant with a notice to quit, you do not have to give them a reason why. It is often better if you do not give them a reason, or if you tell them that you would just like your property back. You may evict a tenant for any reason as long as the reason is not illegal.
If you have a tenant on Housing Assistance, then you have to serve them with a notice to quit with cause. For example, if you served them a 30-day notice to quit you would have to put a reason: "Owner plans on doing extensive remodeling and needs the property vacant to do so." Whatever your reason, you must include it on the notice.
19. AFTER I FILE MY CASE, DO I HAVE TO GO TO COURT?
Not necessarily. Once the case is filed and the tenants are served with the summons and complaint, the tenants have so many days to file an answer or a response with the court. (The time frame for this depends on how the tenant was served. For instance, if they were served personally, then they have 5 days. If sub-served or posted, they have 15 days). If the tenant files an answer with the court, then a trial date is requested (and YES you will have to go to court). But, if the tenant does not file an answer with the court, then there is no court date.
20. HOW LONG DOES IT TAKE THE SHERIFF TO LOCKOUT THE TENANTS AFTER THE TRIAL DATE?
After the writ is issued and the Sheriff has posted the property, it usually takes anywhere from 14 to 21 days to have a lockout.
21. MY TENANT FILED A "THIRD PARTY CLAIM". WHAT IS THAT?
This means that when the unlawful detainer case was filed, the prejudgment form was not filed with the summons and complaint. The prejudgment form covers all unknown and unnamed occupants in a property. If a third party claim is filed, you will have to go to court, whereby a judge will decide if the third party has as any rights to the property. If the judge decides that they do then that person will be given so many days to file an answer with the court. If the judge decides that they do not have any rights to the property, then your case will continue on.
22. MY TENANT FILED BANKRUPTCY AFTER I SERVED HIM THE THREE DAY NOTICE TO PAY OR QUIT. WHAT DO I DO?
You have to get what is called "relief from the automatic stay." What this means is that you need to have a motion filed with the Bankruptcy Court asking the judge to grant you relief from the tenant's bankruptcy so you may proceed with your case. Once the motion is filed, it generally takes about two weeks to get relief granted. Once relief is granted, you may continue or start your case. If you choose not to do the motion for relief, then your case could be tied up in the bankruptcy from any where from three months to a year. And once the tenant files bankruptcy, no matter what stage your case is in, your case is put on hold until the bankruptcy is settled. The law is going to change in October 2005 whereby a relief from automatic stay will not be necessary if you have a judgment for possession.
23. WHAT HAPPENS IF THE TENANT LEAVES THEIR PERSONAL BELONGINGS ON OR IN THE PROPERTY AFTER THE EVICTION AND IT HAS A VALUE OF LESS THAN $300.00? MORE THAN A $300.00 VALUE?
Once the sheriff has performed the lockout, you have possession of the property again. If the tenant neglected to take their belongings, then you are required by law to store their items for 15 days after the lockout. Within the 15 days, the tenant may contact you to set up a time to come get their belongings. If they do - great, but they may not contact you at all.
If the tenant does not come back to claim their items, then you have to do an evaluation of the items left and decide if they are worth more or less than $300.00. If the items left behind are worth less than $300.00, then you may, at the expiration of the 15 days, throw the items in the trash.
BUT, if the items left behind are worth more than $300.00, then you have to hold a public auction. You must advertise the auction in the local newspaper and you have to auction off the items. The money received from the auction may be put towards monies owed to you. The remaining amount, if any, must be sent back to the tenant.
24. CAN I ACCEPT A PARTIAL PAYMENT ON A RESIDENTIAL THREE DAY NOTICE TO PAY RENT OR QUIT? ON A COMMERCIAL?
On a residential three day notice to pay rent or quit, you may accept a partial payment. HOWEVER, it will then void that notice and you will have to re-serve the tenants with a new three day notice to pay rent or quit asking for the remaining amount owed.
On a commercial three day notice to pay rent or quit, you may accept a partial payment and still be able to file off that same notice at the expiration if the tenants do not come up with the remaining balance.
25. WHAT HAPPENS IF MY TENANTS ROUTINELY PAY THEIR RENT LATE AND I WANT THEM TO STOP?
In writing, put the tenant on notice that rent is due on a specific day of the month and you will not accept further late payments. If you neglect to do this, you may have implicitly changed the rent due date by such conduct.
26. HOW LONG DOES AN UNLAWFUL DETAINER LAWSUIT TAKE ONCE IT HAS BEEN FILED?
Once the case has been filed, the entire process from start to finish could take any where from 30 to 45 days. If the tenants file a response with the court, then you can probably add about three weeks more to your case.
27. IF THE TENANT IS RESPONSIBLE FOR PAYING THE UTILITIES AND NEGLECTS TO DO SO, CAN I HAVE THE UTILITIES TURNED OFF?
NO!!! The law prohibits from disconnecting or discontinuing any utility services that either you or the tenant are paying for. If the tenant neglects to make the payments, then the landlord is responsible for making the payments until the eviction is completed.
28. THE TENANTS MAY HAVE CHANGED THE LOCKS ON MY PROPERTY AND I DO NOT HAVE A KEY TO THE NEW LOCKS. WHAT DO I DO?
You cannot access the property while the tenants are in possession of your real property. You will, however, need to make arrangements with a local locksmith to have your property locks picked at the time of the lockout and either purchase or make arrangements to have new locks installed at the time the lockout takes place.
29. MY LOCKOUT IS SCHEDULED FOR 12:00 PM TOMORROW. WHEN SHOULD I ARRIVE? AND IS THERE ANYTHING SPECIAL I SHOULD DO?
You need to arrive about a half-hour prior to the scheduled lockout time. You need to have a locksmith and/or a workable lock and key available at the time of the lockout. Please make sure you wait outside your vehicle one to two houses away from the property where the Deputy will be able to see you. In some cases the Deputy is detained on a prior lockout and you may have to wait up to one hour past the scheduled lockout time.
30. I BELIEVE THERE MAY BE ILLEGAL ACTIVITY ON THE PROPERTY, INCLUDING DRUG TRAFFICKING. WHAT SHOULD I DO? AND WILL I BE HELD RESPONSIBLE FOR THIS ACTIVITY?
As the legal owner of the property, you are responsible for whatever activity may transpire, including but not limited to any illegal drug activity. Please call your local police department and make them aware of the situation. If you do not get any results from them, call the Watch Commander for your local police department and explain the situation to the Watch Commander.
In addition, if you are contacted by the neighbors on any suspicious activity, do not go to the tenants directly. Instead, make sure you call police and notify them of the neighbors suspicions.
31. IF MY TENANTS HAVE DOGS THAT COULD BE CONSTRUED AS DANGEROUS, WILL MY INSURANCE COMPANY COVER ANY DAMAGES THAT MAY BE SUSTAINED TO UNSUSPECTING VISITORS OR NEIGHBORS THAT MAY COME ON TO THE PROPERTY?
Make sure you check with your pet-owning tenants and have them supply you with renters insurance. This may include coverage of any pets that they own. Also, check with your insurance carrier to see if pets are covered under your individual homeowners' insurance policy for your rental properties.
32. WHAT IF THE TENANTS HAVE AN ANIMAL ON THE PROPERTY AND THE CONTRACT STATES THAT THERE ARE NO PETS ALLOWED. WHAT CAN I DO?
You need to serve the tenants with a three day notice to perform covenants or quit. With this notice, you will cite the covenant from your contract that deals with pets. Then you need to instruct the tenant to remove the pet or themselves from the property within the three days.
33. WHAT IS THE BEST TYPE OF AGREEMENT TO HAVE WITH A TENANT? A MONTH-TO-MONTH OR A LEASE AGREEMENT?
This is a question only you can answer. Logistically speaking, you can utilize a month-to-month agreement for a residential property which holds a better avenue for the landlord, in that if you have a problem tenant, you are able to use the terms of the contract, including serving the tenant with a 30-day notice to quit, if the tenants have resided in the property for less than one year.
A lease agreement is a binding contract. And by such, all parties are bound by the terms. This is not to say that a lease agreement is a less attractive avenue to utilize. You, as well as the tenant, however, are bound by the terms of the lease agreement. This means that if you have a problem tenant on a lease agreement, unless the tenant is delinquent with the rent, you must serve them with a three day notice to perform covenant or quit if a covenant is in breach. Otherwise, you have to wait for the lease to expire in order to serve them with a notice to quit.
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For further help with your tenant problem, please contact The Professional Law Corporation of Barry Lee O'Connor & Associates.
Barry Lee O'Connor & Associates can prepare, file and serve the Unlawful Detainer Action as well as any related motions. It uses a dependable, bonded, registered process server who understands the need for speedy service in a case in order to serve any papers. They will follow a legal procedure and get your tenant served as quick as legally possible.
The Office of Barry Lee O'Connor & Associates can be reached at:
3691 Adams Street Riverside, CA 92504
(951) 689-9644 Fax (951)352-2325
udlaw2@aol.com
Presented by:
Barry Lee O'Connor & Associates
A Professional Law Corporation
3691 Adams Street Riverside, CA 92504
(951) 689-9644 Fax (951) 352-2325
udlaw2@aol.com
We are a Professional Law Corporation practicing in a limited area of real estate law where we exclusively represent landlords in the state court system and creditors in the United States Bankruptcy Court. Our firm has filed over 20,000 evictions and is dedicated to service by being responsive, knowledgeable, personable, and motivated, but at the same time providing reasonable flat rate fees. Please keep in mind that the information contained in this article deals with California law only and does not pertain to those areas that practice rent control. Such areas are governed by individual municipal codes which can vary from city to city.
[Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither HandelontheLaw.com, or any of its affiliates, shall have any liability stemming from this article.]
