Three Day (3-Day) Notices And Unlawful Detainer (Eviction) Proceedings

This article discusses multiple forms of “Three Day Notices” and their relationship to Unlawful Detainer proceedings, colloquially referred to as “eviction” proceedings.

This article is not intended to give the reader legal advice on how Landlords should terminate their Tenant’s tenancies. This article also does not attempt to identify the type of Three Day Notice that is or is not appropriate in a specific situation. Rather, this article attempts to explain the types of Three-Day Notices available to Landlords who are faced with Tenants who fail to satisfy the terms of their lease / rental agreements. At Last & Faoro, our landlord clients (property owners and property management companies) oversee and manage several hundred residential units, ranging from single family homes and condominiums to multi-building, multi-unit apartment complexes.

In multi-unit apartment buildings, the Landlord is charged with enforcing their leases in a manner for the protection of all tenants. Therefore, a Tenant with an unruly dog in single family residence may get more latitude from a Landlord, than a Tenant with an unruly dog in a multi-unit building, where the unruly dog may have more exposure to and a bigger risk to neighboring tenants and children.

Most Unlawful Detainer proceedings are the by-product of a Tenant failing to timely pay rent. In circumstances where the Tenant is current with the rent and fails to follow the material terms of the lease, the Landlord may serve a “Three Day Notice to Comply or Quit” upon a Tenant. Similar to a “Three Day Notice to Pay Rent or Quit,” the Landlords’ notice must contain the required statutory notice and forfeiture language and served properly. The notice should list the particular breaches of the lease; and, if possible, the Landlord should attempt to have collected evidence (i.e. – ideally photographs) to establish the breach of the lease/rental agreement. If the Tenant fails to timely comply with the Three Day Notice and fails to vacate the property, the Landlord can declare a forfeiture of the Lease and initiate an Unlawful Detainer proceeding.

Many Landlords do not know or understand that tenancies may be terminated because of the Tenant’s failure to comply with the covenants and conditions / rules and regulations set forth in the Landlord’s rental agreement. All too often, Landlords and Tenants merely focus on the monthly rental rates and rent payment due dates and fail to consider, follow or enforce the important terms that have significant importance in multi-unit buildings, as the covenant and conditions / rules and regulations can take on more significant meaning when a Landlord is trying to manage the behavior of co-existing tenants.

RESIDENTIAL TENANTS

In the residential tenancy, “Three Day Notices to Comply” for residential tenants can be of a very diverse nature and can serve to control Tenant’s activities constituting nuisances to the Landlord and neighboring Tenants. Three Day Notices to rectify various forms of Tenant breaches to leases include but are not limited to the following behavior items:

• Cease and Desist and remove unauthorized pets;
• Cease and desist unauthorized subletting;
• Cease and desist and vacate unauthorized occupants;
• Cease and desist and remove unauthorized or inoperable vehicles;
• Cease and desist smoking of any kind and nature;
• Cease and desist short term rentals (i.e. VRBO / Airbnb);
• Cease and desist and remove garbage from common area(s);
• Remove and dispose of garbage and waste in authorized receptacles;
• Clear balcony and stored belongings and garbage; and,
• Cease and desist and remove pet waste.

COMMERCIAL TENANTS FAILURE TO COMPLY WITH LEASE

Even commercial tenants regularly fail to comply with the terms of their leases, making commercial Tenants subject to “Three Day Notices to Comply” as well. Commercial Tenants are regularly served with Three Day Notices to:

• Replenish security deposits consumed to address a financial breach of the lease;
• Pay prorata share of pass through utility charges;
• Pay operating expenses;
• Cease and desist and terminate unauthorized sub-tenancies;
• Pay CAM expenses; and
• Ensure that all on-site activities comply with identified Local, State and Federal law(s).

There can be many reasons why a Tenant may be considered as having failed to comply with the terms of his or her lease. Many factors have to be considered as to whether a Tenant is in fact breaching the lease or not; therefore, on a case by case basis, the details of the “breach of the lease” must be thoroughly evaluated and documented: (a) the terms of the lease must be considered; (b) the Landlord’s prior failure to enforce same or similar rules with that or other Tenants may provide a Tenant a defense; (c) is the Tenant entitled to have a “dog” for example, because the animal is a necessary “service animal”; (d) is the “new sub-tenant” in fact a new occupant who married a previously single Tenant. Consequently, this article is not intended to substitute for the advice of any attorney as to a specific problem or transaction. If the reader has a specific legal question or needs legal advice, the reader should contact an attorney.

CONCLUSION

While the foregoing article was intended to identify various forms of Three Day Notices, it was not meant to be all inclusive, as there are innumerable breaches of a Lease / Rental Agreement that can occur that must be evaluated on a case-by-case basis.

Mr. Faoro is a partner at Last & Faoro specializing in Real Estate and Construction Law for over 30 years, assisting owners, property managers, developers, contractors and realtors in real estate and construction matters. He can be reached at 650-696-8350, or by email at [email protected]. The foregoing article is intended only to provide a general overview of some of the distinguishing characteristics of Three Day Notices. The article is not intended to contain legal advice, is not intended to discuss or address any specific situation or problem and should not be relied on in making any legal decisions. If you have a specific legal question or need legal advice, you should contact a qualified attorney.

Last & Faoro 177 Bovet Road, Suite 550 San Mateo, CA 94402 [email protected] Tel: 650-696-8350 Fax: (650) 696-8365