Landlord/Tenant Before Filing an Unlawful Detainer Action

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Landlord/Tenant: Before Filing an Unlawful Detainer Action
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Figure out if you need a 3-day, 30-day or 60-day notice
Exceptions
Fill out the notice you need
How to use more than 1 notice
Serve the notice
Figure out if the tenant does what the notice asks

Figure out if you need a 3-day, 30-day or 60-day notice:

In most cases, before you file an Unlawful Detainer action, you have to fill out and serve notice. This can be a 3-day, 30-day or 60-day notice. Then you have to wait to see if the defendant does what the notice asks.
Exceptions: Here are cases where you don’t need a notice.
- The tenant’s lease is up
- You accept the tenants notice to end the lease
- The tenant works for you and doesn’t pay rent
- The tenant moves out
- The tenant’s lease is up:
  
  A “fixed term” lease says what day the lease is over. It also says how to extend the lease. If the defendant has an expired lease that they don’t extend, you can file an Unlawful Detainer action.
  
  You can’t take rent for the time after the lease expires. This would be the same as making a new lease. For some subsidized housing, like Section 8 vouchers, you have to give 90 days notice. The notice has to say that you don’t want to renew the lease.
  
  See Cal. Civil Code § 1954.535.
- You accept the tenant’s notice to end the lease:
  
  If the lease isn’t over, you or the tenant can end the lease. The lease says how many days notice you have to give to end the lease.
  If the tenant gives you a notice like this but doesn’t move out, you can file an Unlawful Detainer action right away.
  
  You can’t take rent for the time after the lease was supposed to be over. This is like making a new lease.
  
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- The tenant works for you:
  
  If the tenant lived on your property as your servant, employee, agent, or licensee AND they didn’t pay rent, you can file an Unlawful Detainer action as soon as they don’t work for you anymore.
- The tenant moves out:
  
  This only works if the rent is at least 14 days late and you think the tenant has left.
  The notice:
  - Has to be in writing
  - The title has to say "Notice of Belief of Abandonment"
  - Has to say the name of the tenants
  - Has to say the address you’re talking about
  - Has to say the date the lease ends. This date can’t be less than 15 days after personal service, or 18 days you served the tenant by mail
  - You have to sign and date the notice
Fill out the notice you need:

If your case isn’t an exception, you have to fill out a notice. After you serve the tenant with the notice, you have to wait to see if they do what the notice says,

There are different types of notices. You have to figure out what notice to use.
- 3-Day Notice to Pay Rent or Quit
- 3-Day Notice to Perform Covenants or Quit
- 3-Day Notice to Quit
- 30-Day or 60-Day Notice to Quit
- Notice to former owner or tenants
- 3-Day Notice to Pay Rent or Quit:
  
  You can use this notice when the tenant is behind on the rent. You don’t have to fill out this notice as soon as the rent is overdue. A lot of tenants are sometimes late with rent.
  
  Before you fill out this notice, contact the tenant. Find out if the rent is on its way. But, if you think the tenant won’t or can’t pay the rent, fill out the notice as soon as possible.
  
  The notice:
  - Has to be in writing
  - Has to have the title "Three Day Notice to Pay Rent or Quit"
  - Has to say the name of the tenant
  - Has to say the address you’re talking about
  - Has to say exactly how much rent is overdue
  - Has to say why that much rent is due and the dates the rent was due
  - Has to give the tenant the chance to pay the rent or move out in 3 days
  - Has to say that if the tenant doesn’t pay in 3 days, they’ll forfeit the lease.
  - You have to sign and date the notice
  Be very careful when you fill out the 3-Day Notice to Pay Rent or Quit. The notice won’t be valid if you:
  - Don’t say how much money is due,
  - Ask for more money than what is due,
  - Ask for rent that was due more than 1 year ago,
  - Ask for something that’s not rent. This can be late charges, interest, utilities, property taxes, or damages,
  - Tell the tenant to "pay rent and quit" (instead of "pay rent or quit"), or
  - If you don’t let the tenant chose to forfeit the lease. This is called “election of forfeiture.”
- 3-Day Notice to Perform Covenants or Quit
  
  This notice is for when the tenant broke a condition of the lease, and they can fix the problem. This is not for when the tenant doesn’t pay the rent.
  
  This happens more in commercial leases. For example, a tenant might use the property to do something that’s not allowed, change the property or refuse to keep up or fix the property. Or, a tenant might not pay late fees or overdue rent.
  
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  The notice:
  - Has to be in writing
  - Has to have the title "Three Day Notice to Perform Covenants or Quit"
  - Has to say the name of the tenant
  - Has to say the address you’re talking about
  - Has to say what the tenant did to break the lease
  - Has to give the tenant the chance to do fix the problem or move out in 3 days
  - Has to tell the tenant that if they don’t fix the problem in 3 days, they forfeit the lease
  - You have to sign and date the notice
- 3-Day Notice to Quit:
  
  This type of notice is for when the tenant:
  
  1) Assigned, sublet, or committed waste in the property, breaking the lease agreement,
  2) Kept or allowed a “nuisance” on the property, or
  3) Used the property to do something illegal (like selling drugs).
  
  The notice:
  - Has to be in writing
  - Has to have the title: "Three Day Notice to Quit"
  - Has to say the name of the tenant
  - Has to say the address you’re talking about
  - Has to say what the tenant did to get the 3-day notice (sublet, sold drugs, etc)
  - Has to say exactly what happened to deserve a 3-day notice and on what days
  - Has to say clearly that the tenant has to move out as soon as the 3 days are up
  - You have to sign and date the notice
  Be careful. Don’t serve a 3-day notice for something that happened only once. For example, don’t use it if the tenant had illegal drugs once.
  
  You have to be able to prove that the tenant’s bad behavior is an ongoing pattern. The bad behavior has to:
  - Threaten health and safety,
  - Make people not want to go to the property
  - Lower its value significantly.
- 30-Day or 60-Day Notice to Quit:
  
  A 30-day notice is given when you want to end a month-to-month tenancy for someone who has lived in the rental unit for less than one year. A 60-day notice is given when the tenant has lived in the rental unit for a year or more.
  
  The notice:
  - Has to be in writing
  - Has to have the title "Thirty Day Notice to Quit" or "Sixty Day Notice to Quit"
  - Has to say the name of the tenant
  - Has to say the address of the leased premises you’re talking about
  - Has to say the month-to-month tenancy will end in 30 days if you are giving a 30-day notice or 60 days if you are giving a 60-day notice
  - You have to sign and date the notice
  You don’t have to serve a 30-Day or 60-Day notice at the beginning of the month. If you serve a 30-Day or 60-Day notice in the middle of the month, the tenant has to move out in the middle of the next month. The tenant will pay rent for the part of the month they were there.
  
  You can’t end a month-to-month tenancy for an illegal reason. For example, to get back at someone or discriminate in a way that breaks, or violates, the law.
  
  Rent control laws can keep you from canceling a month-to-month tenancy for just any reason. For example, state law says that a mobile home owner can only end a month-to-month tenancy in a mobile park for certain reasons. Federal law says you can only end a government-subsidized lease for certain reasons. And it says you have to follow certain steps to end these leases.
  
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- Notice to former owner or tenants
  
  This notice is for when you buy a property at a foreclosure or execution sale. If the old owner or tenants still live there you can’t just move in. You have to evict the people who live there.
  
  The notice:
  - Has to be in writing
  - If the people who live there were the owners, it has to have the title "Thirty Day Notice to Quit"
  - If the people who live there are tenants of the old owners, it has to have the title "Three Day Notice to Quit" or "Sixty Day Notice to Quit"
  - Has to say the names of the people you want to evict
  - Has to say the address you’re talking about
  - Has to say that they have to leave when the notice is up
  - You have to sign and date the notice
How to use more than 1 notice:

Sometimes, you can use more than 1 type of notice.

For example, if your tenant is always late with the rent, you can serve them with a "3 Day Notice to Pay Rent or Quit" and a "30 Day or 60 Day Notice to Quit".

The tenant has 3 days to pay or leave. But even if they pay, they have to leave in 30 or 60 days.

If the tenant doesn’t pay, you can file an Unlawful Detainer after 3 days. If they pay in 3 days, you have to wait 30 days or 60 days to file the Unlawful Detainer.
Serve the notice:

The notice doesn’t mean anything until it’s properly served on everyone you want to evict. You can serve the notice yourself. Or you can ask a friend to serve it for you, or hire a process server. You have to be over 18 to serve the notice.

There are 3 ways to serve the notice.
- Personal service:
  You have to give the notice to the person you want to evict in person.
- Substitute service
  If the person you want to evict isn’t at their normal home or work, you can serve the notice if you leave a copy with someone over 18. You also have to mail a copy to their home.
- Nail and mail service
  If you can’t figure out where they live or work, or someone over 18 to give the copy to, you can:
  1) Attach a copy in a place where it can be seen easily,
  2) Give a copy to a person who lives there, if you can find one, and
  3) Send a copy by mail to the property. Write the name of the person you want to evict on the envelope.
Figure out if the tenant did what the notice asked

After you serve everyone you want to evict, you have to wait for the notice to end before you do anything else. If the tenant does what the notice asks for, you can’t do anything else.
- Unconditional notices
  The only way to do what an unconditional notice asks for is to move out completely before the notice ends. If the tenant does this, you don’t have to file an Unlawful Detainer complaint. An example of an unconditional notice is a 3-day, 30-day or 60-day notice to quit.
- Conditional notices
  A 3-Day Notice to Pay Rent or Quit and a 3-Day Notice to Perform Covenants or Quit are conditional notices. This means that the tenants don’t have to move out if they do what the notice says.
  
  If they do what the notice says you can’t do anything. You can’t keep the tenant from doing what the notice says.
  
  For example: You served a 3-Day Notice to Pay Rent or Quit. The tenant paid the rent within the 3 days. You have to take the rent.
  
  But, after the 3 days are up, you don’t have to take any rent. You can file an Unlawful Detainer complaint.

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