3 Day Notices

Three Day Pay or Quit

There are a number of 3 day notices available to the landlord, the most popular is, of course the "3 DAY NOTICE TO PAY OR QUIT" it, by it's very wording is in the alternative, which means that the Tenant has the right to Pay the full amount of rent owed within the 3 day period or to vacate the property. To calculate the 3 day period you begin counting on the day after the service of the Notice, count three days and the day after that third day the tenant is in unlawful possession of the premises, and no longer has the right to pay the sum and stay. If the 3rd day falls on a Saturday, Sunday or a Holiday, then the tenant has until the next business day to pay or quit. For example if you serve a 3 day notice on a Wednesday, you count Thursday, Friday, and Saturday, since the 3rd day falls on a weekend the tenant has until midnight on Monday to perform. If, however, Monday is a Holiday, he/she has until the midnight on Tuesday to performs.

Be sure not to include anything but rent in the Notice, no late fees, nothing but rent.  If you are in doubt it is always better to ask for less than is due, if you ask for one penny more than the amount due, then the Notice is flawed and if you go to court you would loose.

There is a one year statute of limitations on rent so be sure you always credit rent to the oldest month due.  For instance if the renter doesn't pay for June, July and August, and in September he pays rent you should credit it back to June, and he/she now owes for July, August and September.

The Notice can be served by personally serving the Tenant, by giving it to a person who is not the Tenant but is of suitable age and discretion, explaining to that person what it is, and then mailing a copy to the tenant first class mail, postage prepaid.  (NOT REGISTERED OR CERTIFIED)   If no one can be found on the property, or they refuse to open the door, you can post it in a conspicuous place, and again mail it First Class Mail.


Three Day to Comply or Quit

The "3 Day Notice to Comply or Quit" is the next notice in the alternative, and it is used for any breach of the rental agreement or lease that is curable, such as having a dog, when the lease forbids pets, Smoking in a non-smoking unit, failure to pay a late fee, or security deposit, an any number of items in your lease that the Tenant can cure. 

This type of notice is difficult to prosecute, if the tenant stops what he/she was doing within the 3 days, and then later starts again you are constantly serving a 3 day notice.  If the breach is a minor breach then a court is reluctant to evict the tenant.

Service of this notice is the same as the 3 Day Pay or Quit.


 

Condition, Maintenance and Repairs

In October's Newsletter we discussed the issue of habitability.  I received emails asking that I go into more depth, in particular "what are the specific requirements imposed by statute".

      The landlord is under an obligation to put and keep his rental units in a condition fit for human occupancy, except for those conditions caused by his tenant's want of ordinary care {Civil Code Secs. 1929, 1941} A building fit for human occupancy must have at least the following characteristics.  In essence if the tenant caused the problem, then he/she can't complain about them.  It is for this very reason that a pre-tenancy walk-through with photographs and the tenants signature is essential.

{Civil Code Sec. 1941.1} sets forth the following requirements.

1. Effective weatherproofing of roof, exterior walls, and unbroken windows

2. Plumbing up to code and in good condition

3. Water supply up to code providing hot and cold water

4. Heating facilities up to code and in good condition

5. Electrical lighting up to code and in good condition

6. Building, grounds and appurtenances clean and free of vermin at the time of renting

7. Adequate receptacles for garbage

8. Floors, stairways and railings in good repair Install and maintain locks

9. Conforming locks {Civil Code Sec. 1941.3}

10.  As of July 1, 2011, California Landlords and homeowners including sellers of residential property, must comply with the Carbon Monoxide Poisoning Prevention Act of 2010.

     The landlord's obligation to repair dilapidations in the characteristics of habitable dwellings does not arise if the tenant violates his own legal obligations as to maintenance, provided these violations substantially interfere with the landlord's ability to do the repairs {Civil Code Sec. 1941.2}

     The landlord is obligated to wire the premises for at least one telephone line {Civil Code Sec. 1941.4}  (Notwithstanding the fact that almost everyone now has a Cell Phone)

      Some local jurisdictions have enacted ordinances requiring certain types of locks, exterior doors, "peep holes," etc, all jurisdictions require smoke detectors.

     Although a tenant may not waive his right to the foregoing habitability requirements, he can agree in writing to maintain, improve or repair these items as part of the consideration of his lease {Civil Code Sec. 1942.1}.

     The tenantís obligation is to maintain his rental household in a clean, sanitary and undamaged condition {Civil Code Sec. 1941.2}

     The landlord having the duty to maintain the premises, has the countervailing right to enter the premises to do so {Civil Code Sec. 1954}.

     Where the landlord fails to maintain the premises as above (i.e. the tenant requests a repair and it is not resolved in a timely manner (30 days is presumed reasonable), then the tenant has a number of remedies. He may do the repair himself and deduct it from rent under certain circumstances, or vacate and be discharged from further obligations under his lease {Civil Code Sec. 1942} He may also withhold the rent until the repairs are done, if the landlords breaches are substantial and have affected the tenant's health and safety.

     A landlord may not collect rent on a premises which are substantially in breach of his obligations to maintain the premises (usually referred to as a breach of the implied warranty of habitability), and may be legally penalized if he does {Civil Code Sec. 1942.4} Acts in retaliation for a tenant exercising his legal rights may also subject the landlord to substantial legal penalties {Civil Code Sec. 1942.5}.

     The breach of the implied warranty of habitability usually comes to a head where the tenant has failed (or refused) to pay the rent, the landlord has given a three day notice to pay or vacate, then initiated an eviction action and placed the matter before a judge or jury.

     Where this occurs, and the tenant can show that the landlord's failure to maintain was a substantial breach of the implied warranty affecting his health and safety, the court or jury will determine the degree to which this breach devalued the rental value of the property to the tenant, usually expressed as a percentage, i.e., -15%, -25%, etc. This factor will then be applied to the lease's rental rate and the rental rate reduced by that amount. The tenant will have the opportunity to pay the past due rent less the percentage earlier found within five (5) days of entry of Judgment. If the tenant does so, the tenant wins. If the tenant fails to pay, the tenant is evicted {Code of Civil Procedure Sec. 1174.2} 

    As I stated in our October Newsletter, there is a way to rid yourself of a tenant and avoid the issue of habitability, and that is to serve a 30 or 60 day notice to vacate.  This only works, however, on a month to month tenancy, and not a lease.  That is why it's so important to do a thorough INITIAL walk through before the tenant has possession, and document everything, also you must keep an eye on the premises, to assure yourself that there are no issues.   Lets face it things happen, things outside the tenants control, such as roof leaks, stove malfunctions, etc.  These must be taken care of quickly.   One of the best ways to avoid appliance problems is to provide appliance repair insurance. . 
 

 

 <