The Eviction Notice

– Understanding the different types of Eviction Notice –

 

What is an Eviction Notice?

 

An eviction notice is a legal document landlords give their tenants to legally end tenancy.  There are several types of eviction notices that address varying issues, like non-payment of rent, non-compliance of the terms of the lease agreement, and end-of-lease termination; and the eviction notice can vary in the notice period, from 3-day up to 90-days.  Collectively, types of documents are known as eviction notices. 

 

An eviction notice is served by the property owner/manager to inform a tenant(s) that rent is past due and of his/her option to either pay the rent due or move-out.  If the tenant(s) pays the past due rent, the notice has no more legal effect on the tenant then that of a reminder letter.  But, if the tenant(s) choose not to pay or move-out, the notice begins the eviction process.

 

why is the  eviction Notice important?

 

Eviction lawsuits are known as summary proceedings, where the court renders a decision as quick as possible.  To quicken the process, response times are significantly shortened.  Where a party may normally have several months to respond, in an eviction lawsuit the response time is reduced to several days.  To compensate, landlords are held to strict compliance with the applicable statutory requirements – procedural and notice requirements are strict and strictly enforced by the courts.   Any misstep is a complete defense to an eviction lawsuit and may be even guilty of an illegal eviction.

 

Generally, eviction cases involve a small number of clearcut issues – whether a notice is drafted properly is one of them.  In California, state law requires that eviction notices include certain elements, or else they are legally defective.  A legally defective notice could invalidate an eviction lawsuit (at any time) and a landlord could be deemed the losing party.  If this occurs, the landlord could owe the tenant(s) court and attorney fees, and then would have to re-start the eviction process with a new and valid notice, losing both money and time.

 

So, a properly drafted notice is essential.

ARe there different types of eviction Notice s?

 

There are, mainly, six types of eviction notices a landlord can give to his or her tenant(s). Depending on the situation, one of the following notices must be served on the tenant(s):

 

3-Day Pay or Quit (C.C.P. §1161(2)) 

 

• This is the most common type of at-fault eviction notice. This is given to a tenant when a tenant has not paid or has paid only a part of the monthly rent as agreed upon. Although this notice can be served on the tenant the day after the rent is due, the typical practice is to give the tenant(s) a grace period of 3 to 5 days before rent is considered late.

• Careful attention must be given to the back rent demanded. The notice can only include the past rent due and must not include any liquidated damages, like late fees and/or interest costs.

• An optional Forfeiture Clause is usually added to this type of notice. The Forfeiture Clause does not allow a tenant to redeem the rental property by paying back past due rent outside the 3-day window of the notice. Otherwise, without this clause, a tenant would be able to keep the rental by paying back past due rent at any time, even after a trial.

• This notice must include information about abandoned property.

 

3-Day Cure or Quit (C.C.P. §1161(3)) 

 

• This notice is also known as a “3-Day Notice to Perform a Covenant or Quit” or a “3-Day Notice to Comply or Quit.” This notice is given to a tenant when a tenant is not following a provision in the rental agreement and the problem can be addressed by the tenant. Examples of a typical lease provision that can be addressed with this type of notice are noise complaints, cleaning one’s trash from common areas, violation of a no-pet provision, and subleasing violations.

• This notice must include the specific provision in the lease that is being violated, or it is invalid.

• Some cities require that a “cease-and-desist” letter be sent first before this type of notice is used.

• This notice must include information about abandoned property.

 

3-Day Unconditional Notice to Quit (C.C.P. §1161(4)) 

 

• Some violations of a rental agreement are so egregious that a tenant(s) is not afforded an opportunity to fix the problem. Eviction laws allow a landlord to demand the tenant leave the property or premises, period. Examples of violations that this type of notice can address are: causing or allowing a nuisance (like keeping a dangerous dog), conducting an illegal activity (like selling drugs), behavior that negatively effects other’s health and/or safety (like mixing noxious chemicals), committing substantial waste (destruction of property), and for moving in subtenants without the landlord’s permission (some jurisdictions).

• Some cities require that a Cure or Quit Notice be sent first before this type of notice is used.

• This notice must include information about abandoned property.

 

30-Day Termination Notice to Quit (C.C.C. § 1946 and §1946.1)

 

• A 30-day notice is given to end a rental agreement of less than 1 year. If more than one tenant lives in the rental unit, the 1 year is measured from the tenant that has been there the longest. When using this notice, no reason for the termination needs to be provided.

• This notice must include information about abandoned property.

• If Security Deposit is involved, that requires a tenant to leave the premises in the same condition as at inception, a landlord is required to give that tenant a Notice of Tenant’s Right to Initial Inspection.

 

60-Day Termination Notice to Quit (C.C.C. § 1946 and §1946.1)

 

• A 60-day notice is given to end a rental agreement of 1 year or more. It is usually used to end a month-to-month tenancy or an “at-will” tenancy, one in which the tenant has legally stayed past the stated rental period in a lease.

• The important thing to remember about using a 60-day notice is that the California Tenant Protection Act of 2019 might require a stated just-cause reason to evict a tenant. If you do not fall into one of the exceptions, an “at-fault” or a “no-fault” reason must be stated.

• This notice must include information about abandoned property.

• If Security Deposit is involved, that requires a tenant to leave the premises in the same condition as at inception, a landlord is required to give that tenant a Notice of Tenant’s Right to Initial Inspection.

 

90-Day Termination Notice to Quit 

 

90-Day Termination Notices are used in two scenarios, 1) to evict a tenant from “Section 8” housing or 2) to evict a tenant or subtenant for property that was sold in a foreclosure sale.

 

1. Section 8 Housing – (C.C.C. §1954.535)

   This notice is used to evict a month-to-month tenant from the Housing Assistance Program (HAP), or colloquially known as Section 8 housing. If the tenant does not vacate the unit within 90 days, the landlord has the legal right to start the eviction process against the tenant.

2. Foreclosures – (C.C.P. §1161b)

A 90-day notice is required in foreclosure sales to evict a bona fide tenant on a month-to-month or periodic tenancy living in a rental that is being foreclosed on.   If the tenant, or subtenant, is a bona fide tenant on a fixed term, the tenant is allowed to stay until the lease ends, unless the new owners are planning to move into the rental as their primary place of residence.  In addition, “just-cause” law may allow the tenant to stay longer, unless there is an exception.   The foreclosure laws a complicated and an attorney should be consulted.

 

Bonus: “Proof of Service”?

 

• A well written Notice should have a “Proof of Service” form on the same page as the Notice.

• Here are some things to keep in mind when filling out a “proof of service” or declaration of service of notice

  • There is no official form that needs to be used.  Any writing that shows the who, what, when, where and how is valid.

  • The form must state the address of the property in question.

  • The form must specify which notice was served to the tenant and when. If multiple notices were served, you need a declaration for each notice.

  • Ensure that all information stated on this form matches the notices served exactly, otherwise the case can be thrown out.
  • You must sign the “proof of service” declaration.