Evicting a Tenant -How to Prepare and Present a Three Day Notice to Pay or Quit

In California the statutes are very strictly enforced when it comes to evicting a tenant. All the “t”s have to be crossed and all the “i” s have to be dotted. Any error can cost the landlord, because it could be sufficient for a judge to throw the case out. The eviction process for a non-paying tenant starts with a demand to the tenant to pay up or leave. California provides for a means of properly providing this demand, but no matter which method is used it must be in writing. The demand for payment of rent or surrender of the premises is known as a three day notice to pay or quit. If the basis of eviction is something other than not paying, then a three day notice to cure of quit must be served.

The three day notice must describe the premises with reasonable certainty. Meaning there should be a description that identifies the property well enough so the tenant will not be misled, usually a correct address of the rental property including apartment number or unit number, where applicable, is sufficient. A legal description is not required and would probably be confusing and misleading to a tenant.

The amount of the rent dues must be exact. Any material error is sufficient to invalidate the notice and therefore the landlord would have to start all over. A material error is subject to interpretation by the court. A few cents would not be a material error, but $5.96 would likely be considered to be more than a material error. The three day notice must indicate to who and how payment is to be made.

The three day notice to pay or quit, must also specifically declare a forfeiture of the lease or tenant could regain possession by simply paying rent due. In areas with rent control the rules differ, but that is another topic that will not be addressed here.

Service of three day notice: A three day notice is considered serious enough that the statutes specify exactly what methods are acceptable. The three day notice is valid and enforceable only if the landlord strictly complies with the statutorily requirements for service. These methods are personal service, substitute service, and what is commonly referred to as “Nail and Mail.”

Personal service: Personal service is just that, you personally serve the tenant with a three day notice to pay or quit by hand delivering and giving the tenant the three day notice to pay or quit. Serving by mail, even if a signature is required is not sufficient.

Substitute service. If the tenant cannot be found at the usual tenant’s residence or place of business, the landlord can hand deliver the notice and give the notice to a person residing in the home, if the person has mental capacity and age. The person has to be at least 18 years of age and should be of sound mind. After the three day notice to pay or quit is served, a second copy must be sent by mail addressed to the tenant. Substitution of service is only allowed if the tenant is found at work or at home. If all the requirements are satisfied, then this is sufficient to meet the substitution of service requirement.

Nail and Mail: If the tenant cannot be found at home or work, and noone over the age of 18 that is available, then the landlord is allowed to post the three day notice to pay or quit in a conspicuous place on the property rented. The landlord has to first attempt personal service, meaning the landlord should knock on the door before posting it. The landlord is also required to give a copy to whoever is residing there and is then required to mail a copy addressed to the tenant.

Once all these steps have been taken the landlord is then required to provide proof of service when filing an unlawful detainer. This means the landlord fills out and signs a document approved by the judicial council and checks off the proper boxes. This document along with the unlawful detainer is then filed in court as the first steps to evicting a non-paying tenant.

North County San Diego Personal Injury and Overtime Claims Attorney Arnold Hernandez

What is this thing called Quiet Enjoyment?

Whether in a commercial or residential lease, quiet enjoyment is the most fundamental and often misunderstood right obtained by a tenant.

Many have experienced the situation when loud music or voices have emanated from a neighbouring unit. If banging on the walls, speaking to the property manager or calling the police does not help, is the landlord in breach of its obligation? Is this what is meant by quiet enjoyment?

The covenant of quiet enjoyment means more than just a noise-free environment. It is a more onerous obligation that provides that the landlord will not interfere with a tenant’s right of possession. This covenant has two components:

1. The landlord has good title to the premises, and therefore can lawfully enter into the lease with the tenant, and

2. The landlord will not interfere with the tenant’s enjoyment of the leased premises.

In most leases the covenant is written in the lease document, setting out the parameters for quiet enjoyment.

Defective Title

A tenant is entitled to exclusive possession of the leased premises, without the permission of anyone else. If the tenant needs approval before entering the premises, then the landlord did not have right to grant the exclusive possession to the tenant. The landlord may then be in breach of its covenant.

Practical Tips
In order to ensure that the landlord can validly enter into the lease, a tenant should examine the title to the landlord’s property in order to confirm ownership. This can be done by way of a subsearch of title at the lawyer’s office or a review of the records of the land registry office. The subsearch should confirm that the owner of the property is the landlord as its name is indicated on the lease document. If this is not the case, the tenant should seek clarification. A subsearch would also show whether there are third-parties with an interest in the landlord’s property, for example, if there is a mortgage on title. This may become significant in the event of default by the landlord, as the lender may be able to step into the landlord’s shoes or in some cases terminate the lease before the end of the lease term.

Substantial Interference

There is no clear-cut test to determine whether a landlord has interfered with the tenant’s quiet enjoyment. This issue has gone before the Courts numerous times, but the case law in this area is inconsistent. The following are situations where the Courts have found that the landlord’s actions constituted a substantial interference with the tenant’s quiet enjoyment: a landlord erecting scaffolding in front of a tenant’s store interfering with the tenant’s business, a landlord creating a substantial amount of dirt and dust while undertaking renovations to another unit, a landlord undertaking unannounced and periodic inspections of a tenant’s premise, and consistent interruptions to gas and electricity supply. A breach of the covenant may not be found in all cases. Generally when the interruption is foreseeable or when reasonable care has not been exercised, the landlord may be deemed to have interfered with the tenant’s quiet enjoyment.

It should be noted that the interruption must be more than just an inconvenience or annoyance and, in most cases, must have a physical element to the interference.

What to do if the landlord is in breach?
When a tenant alleges breach of the covenant of quiet enjoyment, the tenant must choose an appropriate remedy while at the same time avoiding liability under the lease. A tenant may want to stop rent payments until the interference is remedied, with the obligation resuming once the landlord is no longer in breach. Stopping payment of rent is not something that should be taken lightly, and a tenant should consider whether the breach warrants this type of action. It may incite the landlord to claim non-payment of rent or terminate the lease. Accordingly, interrupting rent payments is an action that should never be undertaken without consulting legal counsel.

A tenant may also consider whether to claim damages for abatement of rent, loss of profits, out of pocket expenses, or other damages that flow from the breach. In considering the best course of action, the tenant should also consider whether it wishes to keep the leased premises or terminate the lease.

In the end, if there is a situation that you are unhappy with, you may not have to simply grin and bear it. The right to quiet enjoyment gives a tenant the ability to fight back. However, the fight should not be pursued without professional guidance.

Meredith J. Serota is an associate with BrazeauSeller LLP. Meredith’s practice focuses mainly on Corporate/Commercial transactions, as well as commercial real estate. BrazeauSeller.LLP is an Ottawa business law firm that provides expert legal counsel, innovative solutions and responsive service to its clients. As the exclusive Ottawa member of Meritas Law Firms Worldwide, BrazeauSeller is able to provide its clients with access to trusted, dependable legal representation anywhere in the world, that their business takes them. (613) 237-4000 http://ww.brazeauseller.com

When Can a Tenant Terminate Their Lease Legally?

There’s 3 ways a tenant can terminate their legal obligations to the lease during its term: (1) You can terminate due to legal misconduct on behalf of the landlord (2) When the landlord legally replaces you with new tenants (3) And by an agreement with the landlord and the tenant An example of legal misconduct would be if the landlord does not maintain the premises it could be considered as legal misconduct. Some local/state laws give you the right to terminate any lease obligations if you (the tenant) have problems accessing his/her premises or if your premises have code violations you didn’t know about you could terminate your lease legally.

An example of number two when a landlord replaces a tenant with new tenants would be; if another tenant moved in and pays the full amount of the rent the first tenants obligation is terminated, ended, over.

It’s against the law for a landlord to collect rent from more than one tenant for the same premises. The landlord and tenant could at anytime end their lease obligations by a mutual agreement.

It’s not advisable to pay a deposit unless you’re signing the residential lease agreement form at the same time. Unless they refuse you based on race, color, age, sex, they can legally refuse to allow you to move in and take your deposit if you haven’t signed a residential lease agreement form already.

“Repair and deduct” what’s that? If the landlord hires a professional to repair damages on your home he/she can deduct the cost of the repairs from the rent paid to the landlord. It’s against the law for the landlord to charge more than 1 month’s rent for repairs.

What is “constructive eviction?” Constructive evictions are when the inhabitable condition of your premises makes the property unsuitable to live.

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