Monday, March 14, 2011

Win Your Eviction Case: How To Guarantee Your Tenant Loses & You Win In The Shortest Time Possible

Michael Hodapp -
This article deals with the role
of the eviction notice in unlawful
detainer actions (California & most other states), their
effect, and methods by which they can
be served. Forcible entry and detainer
proceedings and evictions of mobile
homes, RV's, houseboats, etc., are
subjects for other articles.
Unlawful detainer proceedings
are not civil actions. The Superior Court
judge does not have the inherent power
to conduct an unlawful detainer proceeding.
His plenary jurisdiction extends
to civil actions only. His ability to
remove a person from land in a civil
action can be exercised in an action for
ejectment, but this is not an action which
is entitled to priority, and the speedy
remedies provided in the unlawful
detainer statutes are not available to
him in that role.
Unlawful detainers are products of
the unlawful detainer statutes, and the
Superior Court's jurisdiction to conduct
a special proceeding to invoke the
remedies provided there is conferred
by service upon the relevant parties of
notices prescribed by the statutes in your applicable state.
There are but two exceptions to the
notice requirement, and they are 1.
actions to remove a tenant after the
expiration of a fixed term lease; and 2.
actions to remove a terminated employee
occupying realty as an incident
to his employment.

Because the court lacks plenary
jurisdiction when presiding in an unlawful
detainer proceeding, the judge may not
rely on his equitable and other powers to
grant "such other and further relief as to
the court may seem just and proper," the
typical catch-all which is appended to the
end of every civil complaint's prayer for
relief. The court's power is limited to
granting relief which is authorized in the
unlawful detainer statutes, and this power
is conferred only by strict compliance with
the requirements of the statutes. Near
compliance is not good enough.
There is a total of seven types of
notices used as predicates to unlawful
detainer proceedings.
All the notices described below
must be in writing, must identify the
sender as the owner or as an agent of the
owner, should identify the parties to whom
it is addressed, be signed and dated.

(Civ. Code Sec. 1946)
This notice is used to terminate a
tenancy which automatically renews at the
conclusion of each hiring period. For
example, a week to week tenancy would
automatically renew at the end of each
weekly hiring; a month to month tenancy
at the end of each monthly hiring;
and so on. It contains an unequivocal
statement that the owner (or tenant if it
is a tenant served notice) elects to
terminate the tenancy after the expiration
of the time specified after service.
While referred to as a "thirty day
notice," the real time requirement is
slightly different. The notice terminating
tenancy must be given at least as long
before the conclusion of the term of hiring
as the term of hiring itself, not to exceed
thirty days. In the case of a month to
month tenancy, however, the termination
notice may be given at any time, and
terminates the tenancy in thirty days, even
if in the middle of a term. In other words, if
the tenancy is biweekly, at least fourteen
days notice terminating on the conclusion
of a rental period, must be given. In the
case of a month to month tenancy, a thirty
day notice may be given at any time.
In the event an unlawful detainer proceeding
must be initiated, the court is empowered
to award the prevailing landlord
possession of the property, plus the
reasonable rental value of the property for
any period after the notice expires to the
date of judgment that the tenant withholds
possession from him, plus his costs of
suit, including attorney fees, if the rental
agreement so provides. If there is rent
owing (which necessarily would predate
the expiry of the notice) the court lacks
jurisdiction to award it, but it may be
pursued in a separate action or set off
against the security deposit.

This notice is a close relative of
the thirty day notice discussed in the
previous section. It actually overlaps, in
that this notice will terminate a periodic
tenancy, although it is not often used for
that purpose, in that the Civ. Code Sec.
789 notice must be for a period of not
less than thirty days, as specified in the
notice. Its primary use is for any other
type of estate at will, generally in situations
in which there is some question as
to whether a tenancy was intended at all,
or exactly what sort of tenancy was intended,
such as persons sharing a home
with an owner relative.

The type of relief which may be
granted in a subsequent unlawful detainer
is the same as that granted after the Sec.
1946 notice.

The three day notice is an unequivocal
demand that rent in default be
paid within three days of the date of
service, or that the tenant vacate the
premises, specifying the precise amount
due, which must have accrued within the
year last past. The notice may or may
not elect to declare a forfeiture of the
tenancy if the tenant fails to pay. The
purpose of this notice is obvious. It
must be served both on the tenant, and
any subtenants, as they have a right to
pay the rent and redeem the tenancy.
Where unlawful detainer proceedings
are initiated after expiration,
the court is empowered to award any
rent which is due, owing and unpaid, as
set out in the notice and pro-rated
through expiration of the notice, the
reasonable rental value of the premises
for the period through date of judgment
in which the tenant has withheld possession
from the landlord, costs of suit
and attorney fees if the contract provides
for them. The court has the power
to award up to $600 in punitive damages
if it finds the tenant held over
maliciously, but this is almost never
done, and so almost never requested. In
addition, the court may award forfeiture
of the rental agreement if the notice
elected to declare a forfeiture in the
event of non-payment.

If the three day notice did not
declare a forfeiture, and the remaining
term of the lease is a minimum of one
year, then the tenant may redeem his
tenancy by tendering into court the full
amount of the judgment awarded, including
costs and attorney fees. The tenant
has five days to do this, and if he fails to
do it, then and only then may a writ of
possession be issued and transmitted to
the Sheriff for enforcement.

If the three day notice did declare
a forfeiture, then the tenant may apply to
the court within 30 days of entry of judgment
for an order restoring him to the
remaining term of his tenancy, whatever
its length, upon a showing of hardship
and payment of all rent due and owing,
but not costs of suit and attorney fees.

This notice partakes of the characteristics
of the three day notice to pay rent
or quit, but deals with breaches other than
the failure to pay rent. In the event the
tenant breaches any condition of his
lease, including a covenant not to sublet,
then the landlord may serve the three day
notice demanding performance of that
covenant, or that the tenant vacate. If
performance of the covenant is no longer
possible, then the notice need not allow a
right to perform the covenant in lieu of
vacating. Subtenants must also be served
as they have a right to redeem as in nonpayment
of rent cases.

Unlike the non-payment notice, the
three day breach notice may only be
served in response to a breach of a
written covenant of a rental agreement.
Breaches of oral covenants and conditions
may not form the basis for eviction,
although the landlord still has the right to
sue for damages for breach in a general
civil action. The comments about a forfeiture
election in the notice, right to reinstate
after judgment, and relief which
may be granted by the court apply,
except that the court may not award
recovery of any unpaid rent or damages
for breach of the covenant, although it
may award the rental value for any
holdover period. The landlord must
recover rent and damages for breach in
a civil action, or set them off against the
security deposit.

Where the tenant is permitting or
committing a nuisance on the premises, or
waste, then the landlord may serve upon
him a three day notice terminating his
tenancy for this reason. A nuisance is
defined as follows:

"Anything which is injurious to
health, including, but not limited to,
the illegal sale of controlled substances,
or is indecent or offensive
to the senses, or an obstruction to
the free use of property, so as to
interfere with the comfortable
enjoyment of life or property, or
unlawfully obstructs the free passage
or use, in the customary
manner, of any navigable lake, or
river, bay stream, canal, or basin,
or any public park, square, street,
or highway, is a nuisance." Civil
Code Section 3479

Waste is generally taken to mean
the misuse or abuse of property by one
rightfully in possession which results in a
significant change of character or diminution
of value to the holder of the
reversion (in this case, the landlord).
This type of notice may also be served
on a tenant who is using the premises
for an illegal purpose which might not
constitute waste or nuisance.

The scheme of the code is such
that it is the waste, nuisance or illegal act
by the tenant which terminates his lease.
The notice only gives him notice to vacate
after the termination. Thus, there is
no forfeiture, and the reinstatement
provisions after judgment available to the
tenant in a nonpayment of rent or breach
of lease scenario do not apply here. The
court is empowered to award the landlord
restitution of possession of the property,
plus reasonable rental value for holdover
after notice expiration, costs, and attorney
fees if the lease provides for them.

This is designed to remedy the
situation wherein the property has been
sold at foreclosure (and similar sales,
see CCP Section 1161a), but not a
consensual sale, and the foreclosed
owner will not vacate. The notice requires
that he do so within three days of service.
As a condition precedent to the service
of this notice, the sale must have been
lawfully conducted and the title of the new
owner perfected, including recordation
of the trustee's deed.

As with the nuisance notice
above, since there is no forfeiture, there
is no reinstatement after judgment. The
court is empowered to award restitution
of possession plus holdover damages
and costs.

This notice is served on a tenant in
a foreclosed property. As with the thirty
day notice under item 1, the notice period
must be for at least as long as the period
of rental, not to exceed thirty days. Because
information on tenants in the
premises, as opposed to former owners,
is usually quite sketchy, this notice is
almost always served in the thirty day
format. As with the previous notice, title
must be perfected and the sale must
have been lawfully conducted.
Even if the tenant has a ten year
lease, the thirty day notice is still competent
to terminate it, with few exceptions
not relevant here. The termination is
considered to be of a non-default nature,
with the same effect on reinstatement as
the nuisance notice. The court is empowered
to award holdover damages, plus
costs, in addition to restitution of possession.
Four methods of service of these
notices are authorized by California law.
In addition to these, most courts will
accept any method which satisfies
procedural due process and conveys
actual notice to the tenant, and there is
considerable case law either dealing
with or indirectly applicable to the service
of notices. The prudent landlord will
be careful to use one of the four methods
authorized by the State. The major
advantage of this is that if done, actual
receipt by the tenant need not be
proved, and this is sometimes very hard
to do.

authorized only for Thirty Day Notices
under Civ. Code Sec. 1946. It is not
authorized for Thirty Day Notices under
Civ. Code Sec. 789, or any other type of
notice. The code says the certified or
registered mailing must be "addressed to
the other party." Presumably this means
the premises, or any other address that
party has given for mailing. It is not necessary
that the tenant actually sign the
"green card" or receive the notice. The
mailing is sufficient.

means delivering it to the tenant, not
necessarily handing it to him. The law on
personal delivery, whether of notices or
process, is voluminous. If the tenant is in
sight, knows you are there, you tell him
what you have for him, and place it somewhere
where he can get it or pick it up if
he is not cooperating, then you have
accomplished personal delivery. For
example, if you come to the door and the
screen is locked, the tenant sees you, you
tell him you have a three day notice and
he refuses to take it, then your personal
delivery might constitute sticking it in the
screen door and telling him it is there.
But simply tacking it on the door, or
placing it in the tenant's mail box, without
personal contact, will not do.

Under fairly well settled case law, multiple
parties to a written lease may be served
by delivery to any one of them, as long as
the notice is addressed to all. The reasoning
is that the parties act as each others'
partners in the lease. All court's known to
the author have accepted this type of
service in the case or oral rental agreements,
or add on tenants who have not
signed the lease, as well.

This theory of multiple service almost
certainly does not apply in cases wherein
service must also be made on a subtenant,
or in cases which do not rely on an
underlying rental agreement at all.

tenant cannot be found either at his residence
or usual place of business, then the
landlord may serve his notice by leaving a
copy with a person of suitable age and
discretion at either place, and mailing a
copy of the notice (first class mail) to the
tenant's residence (not necessarily the

A person of suitable age and
discretion need not be an adult, but the
younger the minor with whom it is left, the
greater chance that service will not be
upheld if challenged. Also, the person of
suitable age and discretion need not be a
member of the household. Repeated
efforts to effect personal delivery are not
required before this method of service
may be invoked.

place of business or residence cannot be
ascertained, or a person of suitable age
or discretion there be found, then the
notice may be served constructively. This
is accomplished by posting a copy of the
notice at a conspicuous place on the
premises and delivering a copy to any
person who may be there (presumably
not of suitable age and discretion, otherwise,
see above), and mailing a copy of
the notice to the tenant at the premises,
not necessarily his residence.
Posting is an integral part of this
service and, therefore, an issue. Posting
does not mean stuffing it in a mailbox,
rolling it up and sticking it between the
screen and front door, or tacking an
envelope with the notice inside to the
front door. "Posting" implies that it can be
seen and its nature understood. For this
reason it should be tacked or taped,
open face, to a conspicuous location.
While you will probably get howls of
protests, and perhaps even threats of suit
for "invasion of privacy" and "harassment,"
this method would seem to be the
only one which would satisfy the "posting"

Until recently, in the case of service
of a three day notice of any type by
substituted or constructive service, the
time for tenant compliance was extended
by five days to a total of eight. A decision
out of the Fourth District Court of Appeal
has held it unnecessary to add the
additional five days. Unfortunately, it is
not clear that all Superior Courts outside
the Fourth District will follow the
decision. For example, as this is written,
the Superior Court in and for the City
and County of San Francisco still requires
a five day extension. The landlord
should check with the Clerk of the
Superior Court in his county to find out
what their policy is, as premature filing
will result in dismissal of the unlawful
detainer action when it is discovered
(which usually happens deep into the
process and results in much lost time).
Although the gravamen of this
article is a description of the various
notices, their uses and results, a few
words about what the landlord should do
after the notice is served and before
initiation of eviction proceedings, are

The greatest source of dismay in
the notice process is the accrual of rent.
The acceptance of rent after the service
of any of the notices described above, in
the absence of an agreement between
the parties to the contrary, is an act
inconsistent with the assertion in the
notice that the tenancy is terminated
thereby. In other words, if you serve an
eviction notice, then accept rent, your
original eviction notice is superseded
and you must start all over again. So the
landlord who wishes to push his problem
to a conclusion will not accept rent in the
case of any notice but the three day
notice to pay rent or vacate, and then
only if the full amount of rent is paid.
The only exception to this rule is the
thirty day notice to vacate either under
Civ. Code Sec. 1946 or 789, but not
after foreclosure. In this case, the landlord
may safely accept rent after the
service of the notice, but only prorated
to the expiration date of the notice. For
example, if the notice expires midnight
February 16, the landlord may accept 16
days pro rated rent for February, but no

Of course, if the landlord has
served a notice to perform a covenant of
the tenancy or vacate, and the tenant has
performed the covenant of tenancy within
three days, then the landlord may accept
rent because the tenant has redeemed
his tenancy and the landlord cannot proceed
to evict anyway.

Next, understand that while the
landlord's notice may elect forfeiture, and
demand possession, they effect neither.
The tenant's right to occupancy does not
end until a judge says it does. Self help is
always severely punished. If the tenant
has failed to move in the face of the
properly drafted and served notice, it is
time to initiate the unlawful detainer of
which it is a foundation, and obtain the
judgment which permits a peace officer to
remove the tenant.

As the title to this article implies,
the choice, preparation and service
of an eviction notice is the foundation of a successful eviction
court action. Since the credible threat of
eviction is the only real leverage the landlord
has to effect compliance with the rental
agreement and prevent damage to his
property, it is essential that the landlord
understand not only which notices to choose from,
but also how to deliver them.

We hope this article has helped in that
regard. Forms of these notices are available
on our site under the California forms

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