This article gives a brief summary of the 3-day notice,
which is how you start an eviction (an unlawful detainer lawsuit). Once the
tenant defaults on the lease (usually by not paying rent) the landlord
cranks up the machinery of eviction by serving a 3-day notice.
** Note: For an introduction to commercial evictions,
see my article Evictions and Unlawful
Detainers. **
Contents of the 3-Day Notice.
You start an eviction by serving a 3-day notice on the tenant. This gives
the tenant 3 days to pay the rent, and if he doesn’t, you file a complaint
for unlawful detainer. In your 3-day notice for rent, you may demand only
those amounts that the lease defines as “rent” or “additional rent.” Check
the boilerplate of your lease – frequently you’ll find a section that
defines as rent all money due under the lease. In that case, you likely can
claim in the 3-day notice all money due from the tenant.
If your lease does not classify all money due as rent,
or if you’re not sure, get help from a lawyer. You might need to serve two
separate 3-day notices on the tenant, the first for base rent and the second
for other amounts due. This gets tricky.
California commercial landlords have a choice of two
types of 3-day notice for non-payment of rent: one that demands an exact
amount of rent, and the other that demands an estimate of rent. 3-day
notices that estimate rent are useful in situations in which it’s difficult
to determine the exact amount of delinquent rent, e.g. where the tenant pays
percentage rent.
* The benefit of using an
exact-amount notice is that you can file the unlawful detainer complaint if
the tenant fails to pay the exact amount within the 3 days. The downside of
an exact-amount notice is that if you overstate the amount, your eviction
will fail.
* The benefit of using an
estimated-amount notice is that you can make a minor mistake in the
calculation of rent due. The downside is that the tenant can make its own
reasonable estimate of rent due, and by paying that amount within the 3
days, the tenant can avoid eviction (by making up the difference after
judgment in the eviction case). Worse, if the tenant’s payment equals or
exceeds the amount of rent actually due, the tenant will win the eviction
action and you’ll pay the tenant’s legal fees. I prefer that you use an
exact-amount notice whenever possible.
Serving the 3-Day Notice.
Once you’ve prepared the 3-day notice, you must serve it on the tenant.
Many landlords serve their own notices to save money. I prefer that
landlords use a registered process server to be sure that service is done
right. Defects in service are deadly to an unlawful detainer. You can serve
3-day notices in a few ways, ranging from personal delivery on the tenant
(best) to “nail and mail” (worst). If the lease requires a particular form
of service, make service that way. Once you’ve served the 3-day notice,
complete a form Proof of Service as evidence.
Tenant's Response to the 3-Day
Notice. On receipt of a 3-day notice, many tenants will
approach you to negotiate a payment plan, and frequently they offer a
partial payment of rent. Should you accept the partial payment? No, if you
really want to evict the tenant. If you don’t want to evict, consider
accepting the money, but only if your 3-day notice contains a non-waiver of
rights to evict despite acceptance of the partial payment.
When in doubt, don’t take the money; don’t negotiate;
don’t play around with deadbeats. Cut your losses and go forward ASAP with
the eviction. Only consider a deal if the space is difficult to re-rent and
the tenant has a good chance of recovering financially. If you cut a deal,
have a lawyer put it in writing.
Tenant's Cure of the 3-Day Notice.
A tenant cures the 3-day notice by paying the rent owed within the 3 days.
In that case, you can’t evict the tenant until his next screw-up. Nor can
you reject the tenant’s delivery of full payment within the 3 day window;
but you may reject it after the 3-days.
Get a Lawyer. Once the
3-days have passed without tenant’s full cure, it’s time to file the
complaint in unlawful detainer. It’s best to have a lawyer throughout the
process, but definitely you need one starting here. In the long run, a good
lawyer saves you time and money.
I hope this article is useful to you. As always, I only
glossed over the outlines of the subject. Call me if you need to talk more.
