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Evicting a Tenant -How to Prepare and Present a Three Day Notice to Pay or Quit

Jan 23, 2008
In California the statutes are very strictly enforced when it comes to evicting a tenant. All the "t"s have to be crossed and all the "i" s have to be dotted. Any error can cost the landlord, because it could be sufficient for a judge to throw the case out. The eviction process for a non-paying tenant starts with a demand to the tenant to pay up or leave. California provides for a means of properly providing this demand, but no matter which method is used it must be in writing. The demand for payment of rent or surrender of the premises is known as a three day notice to pay or quit. If the basis of eviction is something other than not paying, then a three day notice to cure of quit must be served.

The three day notice must describe the premises with reasonable certainty. Meaning there should be a description that identifies the property well enough so the tenant will not be misled, usually a correct address of the rental property including apartment number or unit number, where applicable, is sufficient. A legal description is not required and would probably be confusing and misleading to a tenant.

The amount of the rent dues must be exact. Any material error is sufficient to invalidate the notice and therefore the landlord would have to start all over. A material error is subject to interpretation by the court. A few cents would not be a material error, but $5.96 would likely be considered to be more than a material error. The three day notice must indicate to who and how payment is to be made.

The three day notice to pay or quit, must also specifically declare a forfeiture of the lease or tenant could regain possession by simply paying rent due. In areas with rent control the rules differ, but that is another topic that will not be addressed here.

Service of three day notice: A three day notice is considered serious enough that the statutes specify exactly what methods are acceptable. The three day notice is valid and enforceable only if the landlord strictly complies with the statutorily requirements for service. These methods are personal service, substitute service, and what is commonly referred to as "Nail and Mail."

Personal service: Personal service is just that, you personally serve the tenant with a three day notice to pay or quit by hand delivering and giving the tenant the three day notice to pay or quit. Serving by mail, even if a signature is required is not sufficient.

Substitute service. If the tenant cannot be found at the usual tenant's residence or place of business, the landlord can hand deliver the notice and give the notice to a person residing in the home, if the person has mental capacity and age. The person has to be at least 18 years of age and should be of sound mind. After the three day notice to pay or quit is served, a second copy must be sent by mail addressed to the tenant. Substitution of service is only allowed if the tenant is found at work or at home. If all the requirements are satisfied, then this is sufficient to meet the substitution of service requirement.

Nail and Mail: If the tenant cannot be found at home or work, and noone over the age of 18 that is available, then the landlord is allowed to post the three day notice to pay or quit in a conspicuous place on the property rented. The landlord has to first attempt personal service, meaning the landlord should knock on the door before posting it. The landlord is also required to give a copy to whoever is residing there and is then required to mail a copy addressed to the tenant.

Once all these steps have been taken the landlord is then required to provide proof of service when filing an unlawful detainer. This means the landlord fills out and signs a document approved by the judicial council and checks off the proper boxes. This document along with the unlawful detainer is then filed in court as the first steps to evicting a non-paying tenant.
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