Notices used by owners

(In California)

The notices, with limited exceptions, are the basis of a legal eviction proceeding. Of course, it helps that someone has adverse possession as well. This bulletin addresses some of the general notices in use in California today.

The notices come in two varieties. The first is an “alternative” notice. The two most commonly used alternative notices are the Notice of Rent Payment or Eviction and the Notice of Contract Compliance or Eviction. The second most common variety of notices are simply “termination or abandonment” notices. For example, a three-day eviction notice, a thirty-day eviction notice, a sixty-day eviction notice, and a ninety-day eviction notice. Each of these Notices meets the demands of a particular factual situation. Tenant problems vary widely, hence the need for different types of notices.

Termination notices and notices of compliance are governed by California Code of Civil Procedure §1161 and Civil Code §1946.

More than one notice can be served on a tenant at the same time. However, there is a word of caution. If a thirty-day notice and a three-day notice to pay rent or vacate are served at the same time, the three-day notice to pay should not request rentals beyond the last day specified by the thirty-day notice to vacate. Otherwise, if the rent is paid, the Thirty Day Notice is canceled because the rent has been accepted for a period of time beyond its application. You cannot hear the landlord accepting the rent for a time in the future and then evicting the tenant after it has been paid. This type of conduct on the part of the landlord would put him in a legal “bind” because he delivered the Notice of Payment of Rent or Eviction and, having demanded the rent, he has to accept it within three days after the service. In other words, the Notices sent must not have opposing purposes.

ALTERNATIVE NOTICES

An Eviction or Rent Payment Notice is the most frequently used alternative notice. Over the years, your required content has increased over and over again. Currently requires the following:

1) The names of the tenants / subtenants and the address of the property,

2) The amount of the rents owed,

3) The place where the rent will be accepted,

4) The hours the landlord / rental agent is available to accept the rental and

5) the landlord / rental agent’s phone number.

If the rent is mailed, remember that the 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 / she has the upper hand. The landlord will invariably testify that “I did not get it.” The tenant will testify: “I mailed it and here is the shipping receipt.” Typically, the tenant is in a stronger position in this situation because the judge is looking at a piece of paper and hearing words. The landlord has only words.

The second most commonly used alternative notice is a Notice of Agreement Fulfillment or Waiver. For this notice to be helpful, there must be a written rental agreement. This type of notice identifies the tenant, the property, and the lease and cites the term of the lease that is being breached. The ad does exactly what it says it does. It gives the tenant three days to fulfill a particular agreement or give up the property. Used, for example, when the lease / rental agreement says that pets are not allowed and the tenant has pets. It gives the tenant three days to get rid of Scratch, the pooch, 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 three days the tenant continued his bad habits by housing the dog / cat. Landlord, be prepared to prove continued infringement. From a lawyer’s point of view, the images are really pretty.

TO LEAVE NOTICES

There are a variety of these Notices, each with its own purpose. The most draconian is the Three-Day Eviction Notice. This Notice is used where there are no performance alternatives available; for example, in a foreclosure situation where the borrower remains in the property after the foreclosure sale. (This does not apply when the tenant in possession is not the borrower and is a tenant.) It is also used when a nuisance is being committed or maintained on dead 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 cocaine or heroin and the like. When it comes to evidence, the police reports presented by the arresting officer are really nice.

The thirty-day eviction notice, the sixty-day eviction notice, and the ninety-day eviction notice are used simply to terminate a tenancy, no questions asked or reasons given. Even in these simple situations there are exceptions to the rule.

A note to the record: These notices may be used as prescribed by law 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 may be a full list of wrong reasons. At the same time, keep in mind that any reason is a good reason (as long as it’s not the wrong reason), including the landlord just didn’t like you that day or the tenant gets too much mail on the 4th of July. or his mother is buried in the Custer National Cemetery. This topic is so important, let me put it another way. The real problem is retaliation. Generally speaking, if the landlord seeks to evict because the tenant exercised a legal right, then the landlord is in trouble. Retaliation is a defense. California Civil Code §1942.5 addresses this defense. The defense doesn’t stop with the statute. Along with the statute, there is a wide range of common law defenses that encompass retaliatory evictions, including those listed above.

The funniest retaliation defense our office experienced was actually one of livability. In this case, the Court decided to check the premises. The tenant had reported a rodent infestation to the local county inspector. They were served with a Thirty Day Eviction Notice. The tenant yelled retaliation. The court, the bailiff, the clerk, the plaintiff, the tenant, and two attorneys went to the home. The tenant had gone to the local pet store and bought white rats, the ones with pink eyes. When this group entered the house, all those little white rats came up to them. They were hungry and concluded that they were going to be fed. After all, in your experience, what were humans for? The infestation was self-induced.

The worst thing I saw was in a case where the sewer drained right in front of the kitchen sink window. Authorities were notified. The inspector arrived. The house was condemned and the notification was served. The owner lost. He had mixed feelings about that case. Regardless of the outcome, who would want to live there?

The Thirty Day Notice can be used to terminate a lease in which the tenant has not been a tenant for more than one calendar year. If you have, then you are entitled to sixty days’ notice. A sixty day notice can also be used in a foreclosure situation where the tenant was the tenant of a former landlord. A ninety day notice is used when the tenant is a tenant of a former landlord who was foreclosed and had been a tenant before the Notice of Default was recorded.

There are exceptions to these rules. Ironically, most are set out in HUD agreements. This is a completely different can of worms and will be covered elsewhere. Suffice it to say, HUD agreements have different criteria for terminating a lease. The reasons, again, cannot be the wrong reasons and there are fewer right reasons. Fortunately, HUD agreements specify which ones are correct and which ones are not. Most of the time, the people at HUD are nice and usually something can be worked out.

Sample notification forms can be found at groverrhowe.com.