NOTICE AS A FOUNDATION TO
A SUCCESSFUL TENANT EVICTION
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This article deals with the role of the eviction
notice in unlawful detainer actions in California, their effect, and methods by
which they can be served. Forcible entry and detainer proceedings and evictions
of mobile homes, RV's, houseboats, etc., are subjects for other articles.
Unlawful detainer proceedings are not civil actions. The Superior Court judge
does not have the inherent power to conduct an unlawful detainer proceeding. His
plenary jurisdiction extends to civil actions only. His ability to remove a
person from land in a civil action can be exercised in an action for ejectment,
but this is not an action which is entitled to priority, and the speedy remedies
provided in the unlawful detainer statutes are not available to him in that
Unlawful detainer is a creature of the unlawful detainer statutes, and the
Superior Court's jurisdiction to conduct a special proceeding to invoke the
remedies provided there is conferred by service upon the relevant parties of
notices prescribed by the statutes. There are but two exceptions to the notice
requirement, and they are 1. actions to remove a tenant after the expiration of
a fixed term lease; and 2. actions to remove a terminated employee occupying
realty as an incident to his employment.
Because the court lacks plenary jurisdiction when presiding in an unlawful
detainer proceeding, the judge may not rely on his equitable and other powers to
grant "such other and further relief as to the court may seem just and
proper," the typical catch-all which is appended to the end of every civil
complaint's prayer for relief. The court's power is limited to granting relief
which is authorized in the unlawful detainer statutes, and this power is
conferred only by strict compliance with the requirements of the statutes. Near
compliance is not good enough.
There is a total of seven types of notices used as predicates to unlawful
All the notices discussed below must be in writing, must identify the sender
as the owner or as an agent of the owner, should identify the parties to whom it
is addressed, be signed and dated.
THIRTY DAY NOTICE TERMINATING TENANCY
(Civ. Code Sec. 1946)
This notice is used to terminate a tenancy which automatically renews at the
conclusion of each hiring period. For example, a week to week tenancy would
automatically renew at the end of each weekly hiring; a month to month tenancy
at the end of each monthly hiring; and so on. It contains an unequivocal
statement that the owner (or tenant if it is a tenant served notice) elects to
terminate the tenancy after the expiration of the time specified after service.
While referred to as a "thirty day notice," the real time
requirement is slightly different. The notice terminating tenancy must be given
at least as long before the conclusion of the term of hiring as the term of
hiring itself, not to exceed thirty days. In the case of a month to month
tenancy, however, the termination notice may be given at any time, and
terminates the tenancy in thirty days, even if in the middle of a term. In other
words, if the tenancy is biweekly, at least fourteen days notice terminating on
the conclusion of a rental period, must be given. In the case of a month to
month tenancy, a thirty day notice may be given at any time.
In the event an unlawful detainer proceeding must be initiated, the court is
empowered to award the prevailing landlord possession of the property, plus the
reasonable rental value of the property for any period after the notice expires
to the date of judgment that the tenant withholds possession from him, plus his
costs of suit, including attorney fees, if the rental agreement so provides. If
there is rent owing (which necessarily would predate the expiry of the notice)
the court lacks jurisdiction to award it, but it may be pursued in a separate
action or set off against the security deposit.
THIRTY DAY NOTICE (Civ. Code Sec. 789)
This notice is a close relative of the thirty day notice discussed in the
previous section. It actually overlaps, in that this notice will terminate a
periodic tenancy, although it is not often used for that purpose, in that the
Civ. Code Sec. 789 notice must be for a period of not less than thirty days, as
specified in the notice. Its primary use is for any other type of estate at
will, generally in situations in which there is some question as to whether a
tenancy was intended at all, or exactly what sort of tenancy was intended, such
as persons sharing a home with an owner relative.
The type of relief which may be granted in a subsequent unlawful detainer is
the same as that granted after the Sec. 1946 notice.
THREE DAY NOTICE TO PAY RENT OR VACATE
The three day notice is an unequivocal demand that rent in default be paid
within three days of the date of service, or that the tenant vacate the
premises, specifying the precise amount due, which must have accrued within the
year last past. The notice may or may not elect to declare a forfeiture of the
tenancy if the tenant fails to pay. The purpose of this notice is obvious. It
must be served both on the tenant, and any subtenants, as they have a right to
pay the rent and redeem the tenancy.
Where unlawful detainer proceedings are initiated after expiration, the court
is empowered to award any rent which is due, owing and unpaid, as set out in the
notice and pro-rated through expiration of the notice, the reasonable rental
value of the premises for the period through date of judgment in which the
tenant has withheld possession from the landlord, costs of suit and attorney
fees if the contract provides for them. The court has the power to award up to
$600 in punitive damages if it finds the tenant held over maliciously, but this
is almost never done, and so almost never requested. In addition, the court may
award forfeiture of the rental agreement if the notice elected to declare a
forfeiture in the event of non-payment.
If the three day notice did not declare a forfeiture, and the remaining term
of the lease is a minimum of one year, then the tenant may redeem his tenancy by
tendering into court the full amount of the judgment awarded, including costs
and attorney fees. The tenant has five days to do this, and if he fails to do
it, then and only then may a writ of possession be issued and transmitted to the
Sheriff for enforcement.
If the three day notice did declare a forfeiture, then the tenant may apply
to the court within 30 days of entry of judgment for an order restoring him to
the remaining term of his tenancy, whatever its length, upon a showing of
hardship and payment of all rent due and owing, but not costs of suit and
THREE DAY NOTICE TERMINATING TENANCY FOR BREACH
This notice partakes of the characteristics of the three day notice to pay
rent or quit, but deals with breaches other than the failure to pay rent. In the
event the tenant breaches any condition of his lease, including a covenant not
to sublet, then the landlord may serve the three day notice demanding
performance of that covenant, or that the tenant vacate. If performance of the
covenant is no longer possible, then the notice need not allow a right to
perform the covenant in lieu of vacating. Subtenants must also be served as they
have a right to redeem as in non-payment of rent cases.
Unlike the non-payment notice, the three day breach notice may only be served
in response to a breach of a written covenant of a rental agreement. Breaches of
oral covenants and conditions may not form the basis for eviction, although the
landlord still has the right to sue for damages for breach in a general civil
action. The comments about a forfeiture election in the notice, right to
reinstate after judgment, and relief which may be granted by the court apply,
except that the court may not award recovery of any unpaid rent or damages for
breach of the covenant, although it may award the rental value for any holdover
period. The landlord must recover rent and damages for breach in a civil action,
or set them off against the security deposit.
THREE DAY NOTICE OF TERMINATION FOR NUISANCE OR WASTE
Where the tenant is permitting or committing a nuisance on the premises, or
waste, then the landlord may serve upon him a three day notice terminating his
tenancy for this reason. A nuisance is defined as follows:
"Anything which is injurious to health, including, but not limited to,
the illegal sale of controlled substances, or is indecent or offensive to
the senses, or an obstruction to the free use of property, so as to
interfere with the comfortable enjoyment of life or property, or unlawfully
obstructs the free passage or use, in the customary manner, of any navigable
lake, or river, bay stream, canal, or basin, or any public park, square,
street, or highway, is a nuisance." Civil Code Section 3479
Waste is generally taken to mean the misuse or abuse of property by one
rightfully in possession which results in a significant change of character or
diminution of value to the holder of the reversion (in this case, the landlord).
This type of notice may also be served on a tenant who is using the premises for
an illegal purpose which might not constitute waste or nuisance.
The scheme of the code is such that it is the waste, nuisance or illegal act
by the tenant which terminates his lease. The notice only gives him notice to
vacate after the termination. Thus, there is no forfeiture, and the
reinstatement provisions after judgment available to the tenant in a nonpayment
of rent or breach of lease scenario do not apply here. The court is empowered to
award the landlord restitution of possession of the property, plus reasonable
rental value for holdover after notice expiration, costs, and attorney fees if
the lease provides for them.
THREE DAY NOTICE AFTER FORECLOSURE
This is designed to remedy the situation wherein the property has been sold
at foreclosure (and similar sales, see CCP Section 1161a), but not a consensual
sale, and the foreclosed owner will not vacate. The notice requires that he do
so within three days of service. As a condition precedent to the service of this
notice, the sale must have been lawfully conducted and the title of the new
owner perfected, including recordation of the trustee's deed.
As with the nuisance notice above, since there is no forfeiture, there is no
reinstatement after judgment. The court is empowered to award restitution of
possession plus holdover damages and costs.
THIRTY DAY NOTICE AFTER FORECLOSURE
This notice is served on a tenant in a foreclosed property. As with the
thirty day notice under item 1, the notice period must be for at least as long
as the period of rental, not to exceed thirty days. Because information on
tenants in the premises, as opposed to former owners, is usually quite sketchy,
this notice is almost always served in the thirty day format. As with the
previous notice, title must be perfected and the sale must have been lawfully
Even if the tenant has a ten year lease, the thirty day notice is still
competent to terminate it, with few exceptions not relevant here. The
termination is considered to be of a non-default nature, with the same effect on
reinstatement as the nuisance notice. The court is empowered to award holdover
damages, plus costs, in addition to restitution of possession.
Four methods of service of these notices are authorized by California law. In
addition to these, most courts will accept any method which satisfies procedural
due process and conveys actual notice to the tenant, and there is considerable
case law either dealing with or indirectly applicable to the service of notices.
The prudent landlord will be careful to use one of the four methods authorized
by the State. The major advantage of this is that if done, actual receipt by the
tenant need not be proved, and this is sometimes very hard to do.
CERTIFIED MAILING: This is authorized only for Thirty Day Notices under
Code Sec. 1946. It is not authorized for Thirty Day Notices under Civ.
Code Sec. 789, or any other type of notice. The code says the certified or
registered mailing must be "addressed to the other party." Presumably
this means the premises, or any other address that party has given for mailing.
It is not necessary that the tenant actually sign the "green card" or
receive the notice. The mailing is sufficient.
PERSONAL DELIVERY: This means delivering it to the tenant, not necessarily
handing it to him. The law on personal delivery, whether of notices or process,
is voluminous. If the tenant is in sight, knows you are there, you tell him what
you have for him, and place it somewhere where he can get it or pick it up if he
is not cooperating, then you have accomplished personal delivery. For example,
if you come to the door and the screen is locked, the tenant sees you, you tell
him you have a three day notice and he refuses to take it, then your personal
delivery might constitute sticking it in the screen door and telling him it is
there. But simply tacking it on the door, or placing it in the tenant's mail
box, without personal contact, will not do.
Under fairly well settled case law, multiple parties to a written lease may
be served by delivery to any one of them, as long as the notice is addressed to
all. The reasoning is that the parties act as each others' partners in the
lease. All court's known to the author have accepted this type of service in the
case or oral rental agreements, or add on tenants who have not signed the lease,
This theory of multiple service almost certainly does not apply in cases
wherein service must also be made on a subtenant, or in cases which do not rely
on an underlying rental agreement at all.
SUBSTITUTED SERVICE: If the tenant cannot be found either at his residence or
usual place of business, then the landlord may serve his notice by leaving a
copy with a person of suitable age and discretion at either place, and mailing a
copy of the notice (first class mail) to the tenant's residence (not
necessarily the premises).
A person of suitable age and discretion need not be an adult, but the younger
the minor with whom it is left, the greater chance that service will not be
upheld if challenged. Also, the person of suitable age and discretion need not
be a member of the household. Repeated efforts to effect personal delivery are
not required before this method of service may be invoked.
CONSTRUCTIVE SERVICE: If a place of business or residence cannot be
ascertained, or a person of suitable age or discretion there be found, then the
notice may be served constructively. This is accomplished by posting a copy of
the notice at a conspicuous place on the premises and delivering a copy to any
person who may be there (presumably not of suitable age and discretion,
otherwise, see above), and mailing a copy of the notice to the tenant at the
premises, not necessarily his residence.
Posting is an integral part of this service and, therefore, an issue. Posting
does not mean stuffing it in a mailbox, rolling it up and sticking it between
the screen and front door, or tacking an envelope with the notice inside to the
front door. "Posting" implies that it can be seen and its nature
understood. For this reason it should be tacked or taped, open face, to a
conspicuous location. While you will probably get howls of protests, and perhaps
even threats of suit for "invasion of privacy" and
"harassment," this method would seem to be the only one which would
satisfy the "posting" requirement.
Until recently, in the case of service of a three day notice of any type by
substituted or constructive service, the time for tenant compliance was extended
by five days to a total of eight. A decision out of the Fourth District Court of
Appeal has held it unnecessary to add the additional five days. Unfortunately,
it is not clear that all Superior Courts outside the Fourth District will follow
the decision. For example, as this is written, the Superior Court in and for the
City and County of San Francisco still requires a five day extension. The
landlord should check with the Clerk of the Superior Court in his county to find
out what their policy is, as premature filing will result in dismissal of the
unlawful detainer action when it is discovered (which usually happens deep into
the process and results in much lost time).
Although the gravamen of this article is a description of the various
notices, their uses and results, a few words about what the landlord should do
after the notice is served and before initiation of eviction proceedings, are
The greatest source of dismay in the notice process is the accrual of rent.
The acceptance of rent after the service of any of the notices described above,
in the absence of an agreement between the parties to the contrary, is an act
inconsistent with the assertion in the notice that the tenancy is terminated
thereby. In other words, if you serve an eviction notice, then accept rent, your
original eviction notice is superseded and you must start all over again. So the
landlord who wishes to push his problem to a conclusion will not accept rent in
the case of any notice but the three day notice to pay rent or vacate, and then
only if the full amount of rent is paid. The only exception to this rule is the
thirty day notice to vacate either under Civ. Code Sec. 1946 or 789, but not
after foreclosure. In this case, the landlord may safely accept rent after
the service of the notice, but only prorated to the expiration date of the
notice. For example, if the notice expires midnight February 16, the landlord
may accept 16 days pro rated rent for February, but no more.
Of course, if the landlord has served a notice to perform a covenant of the
tenancy or vacate, and the tenant has performed the covenant of tenancy within
three days, then the landlord may accept rent because the tenant has redeemed
his tenancy and the landlord cannot proceed to evict anyway.
Next, understand that while the landlord's notice may elect forfeiture, and
demand possession, they effect neither. The tenant's right to occupancy does not
end until a judge says it does. Self help is always severely punished. If the
tenant has failed to move in the face of the properly drafted and served notice,
it is time to initiate the unlawful detainer of which it is a foundation, and
obtain the judgment which permits a peace officer to remove the tenant.
As the title to this article implies, the notice is the foundation of an
eviction proceeding. Since the credible threat of eviction is the only real
lever the landlord has to effect compliance with the rental agreement and
prevent damage to his property, it is essential that the landlord understand not
only what notices are available, but also how to deliver them. We hope this
article has helped in that regard. Forms of these notices are available on our
site under the California forms section.