3 Day, 30 - 60 Day Notices, Grace Period and more


Q: I have been a property manager for many years. As a matter of practice, when I serve Three-Day Notices to Pay Rent or Quit, I always attach a letter outlining the rent owed along with the late charges for a total amount due and owing. Most tenants understand that since their rent is late they have incurred late charges. Yet recently, I had a judge rule for the defendants stating that my notice was inaccurate because of the confusion created by the two different amounts requested between the Three-Day Notice and the attached letter. Was the judge right and what do I do in the future?

Assuming your Three-Day Notice to Pay Rent or Quit was valid, the attached letter requesting a different amount than that requested on the Three-Day Notice creates an ambiguity that will be decided in favor of the Defendant. For example, if your Three-Day Notice to Pay Rent or Quit demanded rent of $1,200 for the month of April and then your attached letter states that the tenant owes $1,200 plus a $50 late fee for a total due and owing of $1,250, what amount must the tenant tender to cure the default? Thus, the ambiguity will render the notice defective. In the future, you should instead, prepare both a Three-Day Notice to Pay Rent or Quit, for the rent, plus prepare and serve a Three-Day Notice to Perform Covenants or Quit for the late charges. By demanding the rent on one notice along with a demand for late charges on the other, the tenant is obligated to comply with both.

Q: When I serve 30-Day or 60-Day Notices to Vacate, I normally wait until the tenant pays their rent for the month before serving them to ensure that the owners will not be out that month’s rent. Well, I recently was told that after serving a 30-Day Notice that I could serve a Three-Day Notice for Rent if the tenants do not pay. Is this true?

Yes. Despite the existence of the Termination Notice, a tenant is still responsible for the rent during the notice period. Thus, if you serve a 30-Day Termination Notice to Vacate on July 1, the tenant is still responsible for the rent through July 31. If the tenant does not tender their rent for the month of July, you may serve a Three-Day Notice to Pay Rent or Quit requesting rent for July. However, be careful when you are calculating the dates that rent is due. If you served a 30-Day Notice on June 20 to expire July 20, then the tenant does not owe rent for the whole month of July but rather a prorated portion for 20 days of July’s rent. If the tenant were to pay July’s rent in full and you accept, your 30- Day Notice would be waived.

Q: I aggressively manage my properties. I find that by requiring all the tenants to pay rent on the first of the month and not giving them a grace period, I have far fewer evictions and vacancies. Thus, if a tenant does not pay their rent by the first of each month, I serve them a Three-Day Notice to Pay Rent or Quit on the second of the month. Most of the tenants are responsive and those that are not are evicted quickly with minimal loss in rents. However, last month, after serving a Three-Day Notice to Pay Rent or Quit and the tenant failed to comply, I contacted an attorney to initiate the eviction process. He informed me that I was premature in serving the notice as the first of the month fell on a weekend and the tenant had through Monday to pay me the rent. Is he right?

Yes. A Three-Day Notice to Pay Rent or Quit is only effective if it is served after the rent demanded becomes due. However, if the rental due date should fall on a weekend or holiday, the tenant has through the next business day to tender the rent in compliance with the rental agreement. For example, if the rent is due on the first of the month, it is normally deemed late on the second of the month if not received. However, if the first should fall on a weekend or holiday, the tenant has through the next business day to tender the rent, or Monday for purposes of our example. Your Three-Day Notice would be premature if the first fell on a weekend and you served the notice on Monday. Yet had you waited until Tuesday to serve the notice, your notice would be valid.

Q: I guess I am becoming hard in my old age because I am finding that it does not pay to work with tenants when it comes to paying rent. I used to accept money from tenants even after I served them with a notice for non-payment of rent. I thought that it was helping me because I would not be out so much money every month. As it turns out, it was a lot more work and very little difference in income. So now I do not accept any money after the expiration of a notice. Am I okay by not accepting rent?

Yes. After expiration of the notice period, there is no obligation by the landlord to accept any sums, either a partial payment or payment plus additional charges. If the landlord chooses to accept partial funds, they must serve a new notice for any unpaid balance in order to proceed forward and file an unlawful detainer. Of course, if the landlord accepts payment in full at any point, then the notice and remedies of forfeiture thereunder are waived.

Q: When serving notices, our policy is to “postandmail” whenever possible to avoid confrontation. Now, my attorney is telling me that the law requires that I try personal service first before posting and mailing. Is she correct?

Yes. Under California Code of Civil Procedure, Section 1162, a Three-Day Notice may be served by the following methods: (1) A copy of the notice may be delivered to the tenant personally; (2) If the tenant is absent from his or her place of residence and usual place of business, a copy may be left with a person of suitable age and discretion at either place, and a copy mailed to the tenant at his or her place of residence; or (3) If the places of residence and business cannot be ascertained, or a person of suitable age or discretion cannot be found, a copy of the notice may be affixed in a conspicuous place on the property, a copy delivered to a resident (if one can be found), and a copy mailed to the tenant at the location of the property.

Note that method (2) may be used only if method (1) was tried but failed to reach the tenant. Method (3) may be used only if methods (1) and (2) were tried but failed. Thus, “post-and-mail” should not be your standard policy for service of a Three-Day Notice when personal and substitute and mail service were not attempted.

This article is presented in a general nature to address typical landlord tenant legal issues. Specific inquiries regarding a particular situation should be addressed to your attorney. Stephen C. Duringer is the founder of The Duringer Law Group, PLC, one of the largest and most experienced landlord tenant law firms in the country. The firm has successfully handled over 255,000 landlord tenant matters throughout California, and has collected over $155,000,000.00 in debt since 1988. The firm may be reached at 714-279-1100 or 800-829-6994. Please visit www.DuringerLaw.com for more information.

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