GLF Eviction Confusion

GLF Eviction Confusion

From time-to-time, we receive calls from clients and prospective clients about the dreaded “Three Day Notice.” While in theory its very simple, in practice the Three Day Notice tends to throw even the most experienced landlords for a loop. By way of background, the Three Day Notice is used, in the context of a residential tenancy, to get the tenant to perform an action that they are required by the lease to perform, but have failed to do.

The most common use of the Three Day Notice is where the tenant has failed to pay his or her rent. In addition to a rent default, the Three Day Notice can be used where the tenant has violated any provision of the lease or rental agreement; substantially damaged the rental property — also referred to as committing waste; substantially interfered with other tenants — also referred to as nuisance; or used the rental property for illegal or unpermitted purposes.

Where the Three Day Notice is given for a default in the payment of rent, the notice must include several very specific pieces of information. First, the exact amount of rent due must be clearly stated on the notice. Second, the notice must clearly state to whom the rent must be paid, and if to be made in person, the normal business hours and days that such payments can be made. If, however, the rent must be mailed, then the landlord must provide a mailing address, and the rent is deemed to have been paid on the date on which it is postmarked. The tenant must maintain proof of mailing. Another means of delivering rent is by direct deposit into a depository account specified in the notice. The landlord, if electing this method, must provide the name, address, and account number for the bank where the money is to be deposited. The bank must be located within 5 miles of the apartment subject to the notice. For obvious reasons, this alternative method of requiring payment is a poor choice under any circumstances.

If the Three Day Notice is based upon a default by the tenant other than payment or rent, then the notice must clearly state the nature of the action the tenant has taken (or failed to take) which constitutes a breach of the lease agreement. The notice must also identify what the tenant must do to correct the breach, if possible, or leave within three days. If the breach cannot be cured, the tenant must be advised that they must vacate the premises. Before sending a notice with no corrective action identified, one should consult with an attorney as most violations are capable of being corrected.

The biggest area where we see mistakes made by landlords is in counting the three days. Pursuant to the Code of Civil Procedure, Sections 12 and 12a, the three days begins on the day after the notice is served, and ends at the end of business on the third day. If, however, the third day falls on a weekend or holiday, then the three day period does not expire until the close of business on the following Monday or Non-Holiday.

The second area of concern with Three Day Notices is service — these notices must be served in a manner which increases the likelihood that the recipient will actually receive the notice. A Three Day Notice can be served by personal service, substituted service or by posting and mailing. Anyone over 18 can serve the notice, including the landlord, though we recommend that the landlord (an interested party to the matter) not serve the notice themselves. Disputes in evictions often arise in the context of service of notices, and a dis-interested third party makes a better witness to service than the landlord who has a stake in the outcome of the legal process. Consider using a process server as their testimony in court is considered to be virtually irrefutable.

A final note on service — if the tenant cannot be served personally, and nobody over the age of 18 can be found at the tenant’s home or work address for substituted service, then and only then should the “nail & mail” approach be used. Bear in mind that the service is not completed until such time as the property has been posted AND the notice has been mailed, postage pre-paid first class mail to each and every tenant in the property. Failure to do either results in defective service.

If you have questions or issues regarding landlord-tenant matters, please do not hesitate to call our offices. Our firm has 30+ years experience representing clients in landlord-tenant matters.

David L. Gibbs is an attorney with The Gibbs Law firm, APC. The firm’s practice focuses on issues related to Bankruptcy, Business Law and Manufactured Housing; including community subdivision, pre-purchase diligence and analysis as well as advising community owners on operational, financial and enforcement issues. The firm also represents manufactured home dealers in a wide range of issues. David L. Gibbs is admitted to the Federal Courts for the Central and Southern District of California, and also holds a California real estate broker’s license. The firm continues to offer a wide range of real estate and business related services as it has done for 35 years from its offices in San Clemente. Mr. Gibbs can be reached at (949) 492-3350.

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