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NOTICE AS A FOUNDATION TO A SUCCESSFUL TENANT EVICTION  

Copyright  2000-2011  Landlord.com

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 role.

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 detainer proceedings.

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 attorney fees.

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 conducted.

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 Civ. 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, as well.

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 necessary.

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.

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