The Law Office of Richard M. Mehigan

OVERVIEW OF THE UNLAWFUL DETAINER PROCESS

Unlawful detainer proceedings are a technical area of the law in which the landlord must strictly comply with the statutory scheme in order to be entitled to prevail. Because UDs are considered to be "summary (expedited) proceedings," courts scrutinize the steps taken by the landlord. The proper preparation and service of the notice are critically important if the landlord is to prevail. This is a step normally taken by the client. 

Most unlawful detainer proceedings are based upon the resident's failure to pay rent and the landlord's service of a three-day notice to pay rent or quit. However, in the context of residential rental property, unlawful detainer proceedings are also based upon:

  • Termination of a Month-to-Month Rental Agreement by Landlord

  • Termination of a Month-to-Month Rental Agreement by Tenant

  • Expiration of a Fixed-Term Lease

  • A Three-Day Notice to Perform or Quit

  • A Three-Day Notice to Quit

Termination of a Month-to-Month Rental Agreement by Landlord

A 30-day or 60-day notice of termination is the manner specified by law to bring about the natural conclusion to a month-to-month tenancy. The notices are effective either 30 or 60 days after service of the notice — not effective on the same day of the month following service of the notice. A 30-day notice may be served to a tenant on a month-to-month tenancy who has resided at the premises for less than one year. The 60-day notice must be served if the tenant has resided at the premises for one year or more.
Watch for the tenant's failure to pay rent after a 30-day or 60-day notice is served. A notice to pay rent or quit should be served to request payment of the prorated rent due if the tenant fails to pay. Do not accept rent beyond the effective date of the termination.


Termination of a Month-to-Month Rental Agreement by Tenant

If the tenant gives notice, watch for the tenant's failure to pay prorated rent for the last month of tenancy. A notice to pay rent or quit should be served to request payment of prorated rent through the effective date of the termination if the tenant fails to pay. Do not accept rent beyond the effective date of the termination if you want to require the tenant to vacate.

 

Expiration of a Fixed-Term Lease

Some leases do not allow for an automatic rollover to a month-to-month tenancy. Depending on the way your lease is worded, it may be necessary to serve a pay or quit notice for rent through the date the lease expires if the tenant fails to pay rent during the month of the lease expiration.


Three-Day Notice to Perform or Quit

The three-day notice to perform or quit may be used in a situation where the resident is failing to comply with an express provision of the rental agreement. It is important to be very specific and detailed in stating the facts of the breach of the undesirable or illegal activity. Identify the specific provision of the agreement that has been violated. You may want to have someone review the notice for errors before you serve it. Examples of situations that might require a three-day notice to perform or quit are:

  • Unauthorized pets
  • Unauthorized guests or roommates
  • Disturbance of neighbors
  • Failure to pay the security deposit

If the resident complies with the notice, an unlawful detainer proceeding cannot be filed, just as no proceeding can be filed where the resident complies with a notice to pay rent or quit by paying the rent demanded within the three-day notice period.


Three-Day Notice to Quit

A three-day notice to quit may be used for severe situations or a serious violation of the rental agreement. Examples of situations that might require a three-day notice to quit are:
A breach of the rental agreement which cannot be cured

  • Violence
  • Commission of a nuisance
  • Commission of waste
  • Use of the premises for drugs

Frequently, residents do not comply with a "boilerplate" notice to quit because they cannot or will not vacate within a three-day time-frame. A notice to quit prepared by an attorney and tailored to fit the facts of the case is much more likely to be effective. Our office has proven to be highly effective in the preparation of notices which result in offending residents vacating the premises without the filing of eviction proceedings. Whenever a matter is resolved without legal proceedings, the client recovers possession much more quickly and with less expense than when legal proceedings are required to evict the resident.


EVICTION BASED UPON THE THREE-DAY NOTICE TO PAY RENT OR QUIT

The use of common sense and the applicion of a few basic rules will result in the correct preparation of the three-day notice to pay rent or quit. First, the tenant must be "in default" before the notice can be served. A tenant is "in default" once the due date for the rent has passed, but the tenant has not paid the rent due. If rent is normally due on the first of the month, and the first falls on a weekend or governmental holiday, then the due date for that month's rent becomes the next business day.


Preparation of the Three-Day Notice to Pay Rent or Quit

Procedures must be established to ensure that the three-day notice is directed to all known adult occupants or the premises (whether or not they are named on the rental agreement) and that the notice contains:

  • The correct property address;
  • A completed proof of service;
  • The correct amount of rent due.  DO NOT include any items which cannot be demanded in a three-day notice to pay rent or quit, such as unpaid deposits, amounts due for damage to the premises, late charges, etc.
  • Information regarding the name, phone number, address, and usual days and hours of the person to whom the rent payment is to be made.

 

SERVICE OF NOTICES

There are three methods for serving notices upon which unlawful detainer proceedings are based. Following are the legally acceptable methods, listed in order of preference:

  • Personal delivery to the tenant;
  • Leaving a copy of the notice with a person of suitable age and discretion at the residence and mailing a copy to the tenant(s) at the residence;
  • Posting a copy of the notice in a conspicuous place on the premises and mailing a copy to the tenant(s) at the residence. Technically, this last method of serving the notice is only proper if you have first attempted to serve the tenant at both the residence and at his or her place of employment, if known.

 

CALCULATION OF THE THREE-DAY NOTICE PERIOD

Knowing how to calculate the notice period is critical in an unlawful detainer proceeding. If the landlord rejects a tender of payment in full offered before the three-day notice has expired, it is not proper to even file the complaint for unlawful detainer. The refusal to accept a tender of full payment made during the three-day notice period would be an absolute defense to the landlord's complaint, and the landlord would lose the case. Alternatively, if the tenant offers payment which is less than the full amount demanded in the notice, the landlord may reject it.

To count the three-day notice period, exclude the day the notice was served. Count the next three days. If the third day falls on a weekend or a governmental holiday, then the tenant has through the next business day to pay the rent due. For example, for a three-day notice served on Wednesday, the tenant ordinarily would have through the following Monday to pay the rent.

However, if Monday is a holiday, such as the Labor Day holiday, then the tenant would have through the following Tuesday to pay the rent demanded in the notice. Wednesday does not count as part of the three-day period, because the notice was served on that day. The three-day period would then be Thursday, Friday and Saturday. Since the third day landed on a weekend, the tenant would have through the next business day (Monday) to pay the rent. Accordingly, a tenant will always have until at least the following Monday to pay the rent due for any pay or quit notices served on Wednesday, Thursday, or Friday.

The appellate division of the Sacramento County Superior Court held in a 1990 decision that the resident is given no additional time within which to pay the rent due when the landlord was required to serve the notice under the "post and mail" provision of the statute. This decision was in line with a 1980 case which refused to allow a resident more than 30 days to move when a 30-day notice of termination of tenancy was served under the "post and mail" provision.

 


RESIDENTS IN THE MILITARY

The Servicemembers Civil Relief Act provides procedural protections to active duty servicemembers. In the context of unlawful detainer proceedings, a landlord cannot take a default judgment against an active duty servicemember unless specifically authorized by the court.
 
Taking a default judgment against an active duty servicemember could subject the landlord to liability.
 
Accordingly, if you have information regarding a resident's military status, it is imperative to inform the attorney's office when the tenant information is sent to file the case.