Should Landlords Do Their Own 3-Day Notice to Pay Rent?
Considering the vital importance of the 3-day notice to the eviction case that follows, the answer is not as simple as it seems. This article will address the issue of whether the landlord should write and serve the 3-day notice, also known as a notice to vacate, himself or have a lawyer and his process server take care of it.
First, a brief explanation of what a 3-Day Notice to Pay Rent or Quit is. In jurisdictions such as California that use the 3-day notice, the notice is the first step in the eviction process based upon the tenant’s failure to pay rent. The notice is served on the tenant. The tenant then has three days to pay the rent in full. If the tenant pays the rent within the three days, the landlord must accept it, the default is cured, and the tenancy goes on. If the tenant fails to pay the rent within the three days, the tenant is in default and the landlord may file an eviction lawsuit (called an unlawful detainer in California) on day four.
After the three-day notice period runs, the tenant is no longer permitted to pay the rent and the landlord need not accept it. The landlord may accept rent if he wants to keep the tenant but he does not have to. If the landlord accepts rent after the three day period expires, however, the landlord waives his right to declare a default and cannot evict the tenant until a future non-payment of rent occurs.
When deciding whether to do the 3-day notice yourself, remember the 4 “C’s”: Content, Communicate, Consequences, and Cost. Regarding Content, the law mandates that certain information be included in the 3-day notice. Many landlords rely upon pre-printed, form 3-day notices. The landlord then handwrites in the information particular to that tenant and gives the notice to the tenant. These forms are usually legally sufficient and experienced landlords use the forms without a problem.
Even with pre-printed forms, however, I have seen landlords make two types of mistakes. First, I have seen landlords use out-of-date forms. If you use a form that does not reflect current legal requirements, you could lose at trial and suffer the consequences described below. Thus, make sure that the form that you use is the most current version. Second, I have seen landlords fill out the form incorrectly or incompletely. If you use a form, make sure that you’ve filled in all of it. If you’re not sure about a part of the form, don’t guess. Hire a professional to take care of it and teach you how to complete the form for future use. Don’t get caught with an incorrectly filled out notice or it could result in you losing your eviction case at trial.
The next “C” is Communicate. Specifically, the law requires that the notice be given to the tenant in a certain manner. If you don’t serve the notice correctly, you could lose at trial later. The first method of serving the notice that the law permits is personal service. By personal service, I mean that the landlord simply hands a copy of the notice to the tenant. If you personally serve the tenant, make a note of the date and time so that your lawyer can prepare the Proof of Service later.
The second method for serving a 3-day notice that most jurisdictions permit is called “substitute service”. Substitute service means that the landlord gives the notice to someone at the premises who is over the age of 18 and then mails a copy to the tenant at the property address. Substituted service becomes necessary when you go to your rental property to serve the notice and the tenant isn’t there but another adult is, such as an adult child, spouse, friend, or parent. When that occurs, the law allows the landlord to give the notice to the other adult and then mail a copy to the tenant.
In such a case, be sure that you mail. I’ve seen landlords make the mistake of giving a proper notice to an adult at the premises but forgetting to mail which makes the service defective. Also, make a note of when (date and time) you substitute served the tenant, the name of the person to whom you gave the notice, and the date that you mailed the notice.
In many jurisdictions, there is a third legally authorized method of service called “nail and mail” or “post and mail.” Suppose you go to the property and nobody is there? How do you serve the notice then? Easy. Post a copy of the notice in a conspicuous place on the property (usually on the door) and mail a copy to the tenant. Make a note of when you posted and mailed and you’re set.
Remember one extremely important fact: You must serve a notice on each tenant and every known adult occupant. This is also a common mistake that I’ve seen in my practice. A landlord will give one notice to the tenant who answers the door but doesn’t serve the two roommates. In such a case, you could lose later at trial against the two roommates since they were not served with notice.
The third “C” is Consequences. By that I mean, what are the consequences to the landlord of serving a 3-day notice that is defective in content or incorrectly served. The answer is that you are in trouble if the tenant contests the case and shows up at trial. If the tenant doesn’t contest the case or doesn’t show up at trial, i.e. you win by default judgment, then you got away with your mistake and you’ll win anyway.
But that is the risk that you take if your notice is bad, either in content or manner of service. You’ll be down to banking on the tenant not answering your lawsuit or not showing up to trial. If the tenant contests the case and shows up ready for trial, either himself or through a lawyer, you’re sunk.
So let’s assume for a moment the worse case scenario: Your notice is no good. You’re in the courtroom waiting for trial and nearby is Mr. Tenant with his lawyer ready to slice your case to ribbons. How bad will the damage be? Pretty bad. When the defect in the notice (or how it was served) is pointed out to the court, the court will dismiss your case and tell you to start over. You read that right. You will have to start the entire process over, beginning with serving a new (and correct) notice and then a new lawsuit, all while the tenant continues to live at your property rent free.
It gets worse. Since the court dismissed your case, the tenant, under the law of many states, would be the prevailing party in the lawsuit. Therefore, you could have to pay the tenant’s litigation costs and possibly his attorney’s fees as well. To put it more bluntly, get the notice right.
The final “C” is Cost. What will it cost you to have a lawyer prepare, and a professional process server serve, the 3-day notice. The attorney’s charge to prepare a 3-day notice should run no more than between $70.00 and $90.00. I charge $70.00. The process server will typically charge anywhere from $35.00-$45.00 per tenant to serve the notice. Thus, if two tenants reside at your property, you’re looking at a total charge of about $150.00.
Howard F. Burns, Esq.
Law Office of Howard F. Burns
8880 Rio San Diego Drive, Ste. 800
San Diego, CA 92108
(619) 243-1757
http://www.lawofficeofhowardfburns.com
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