The eviction process can be complicated. My name is John C. Feely and I
am an attorney on a lot of evictions filed in Southern California. My
office is located in Long Beach, CA.
What is the first thing to do in starting an eviction?
The first thing you must do when you know you want to evict your tenant
is serve them with some sort of
notice; either a
3 Day Notice to Pay or Quit, 3 Day Notice to Perform Covenants or Quit,
30 Day Notice to Terminate Tenancy or a 60 Day Notice to Terminate Tenancy.
What is a 3 Day Notice to Pay or Quit?
A 3 Day Notice to Pay or quit is a notice that is given to the tenant (usually
by a Registered Process Server) that informs the tenant that they must
pay the amount of rent they owe to the Landlord in 3 days or vacate the
property after the 3 days. If the tenant does not pay or vacate, and Unlawful
Detainer (eviction) complaint will be filed against them. In California,
this is given to the tenant either by personal service, by giving it to
someone of suitable age or discretion and mailing a copy first class postage
prepaid, or posting in a conspicuous place on the property and by mailing
a copy for the 3 day notice to the tenant’s address.
Why use a Registered Process Server to Serve the Notice?
It is best to have the notice of termination either personally served to
the tenant or posted on the tenant’s premises by a Registered Process
Server rather than having a friend or someone else who is not a party
in the action do it. This is because in California, a Registered Process
Server carries the presumption that the person HAS been served with the
notice. In other words, the burden is on the tenant to prove that they
were not served. Tenants will often argue that they have not been served
with any sort of notice to pay or vacate, but if a Registered Process
Server has served it, presumed that the tenant WAS served. If the notice
is served improperly you lose your eviction lawsuit plain and simple.
Can you Serve Both a 3 Day Notice to Pay or Quit and a 3 Day Notice to
Perform Covenants or Quit? What is the Difference Between the two Notices?
Yes, you can serve both a 3 Day Notice to Pay or Quit and a 3 Day Notice
to Perform Covenants and Quit. The difference is, a 3 Day Notice to Pay
or Quit informs the tenant of the amount of rent they must pay within
3 days to the Land Lord or vacate the premises where as a 3 Day Notice
to Perform Covenants and Quit informs the tenant that they have breached
part of their lease agreement and that the breach needs to be fixed. This
Notice is typically used for a major breach of the lease agreement. But,
non payment of late fees or other missed payments would constitute a breach,
as long as it is in the written lease agreement. For example, a Land Lord
may have a tenant that has failed to keep up maintenance of the premises,
which is in the lease agreement. The Land Lord could choose to serve the
tenant with a 3 Day Notice to Perform Covenants or Quit. Also, if that
tenant also has failed to pay rent, the Land Lord may also serve the tenant
with a 3 Day Notice to Pay or Quit, as well as the 3 Day Notice to Perform
Covenants or Quit.
Is there ever a reason you don’t need to serve a notice?
Yes. One situation. If the lease is a fixed term lease you do not need
to serve a notice of termination. You cannot accept rent after the fixed
term ends or a month to month tenancy is created. If your tenant has been
on a fixed term lease of one year and the lease is ending and you accept
just one month of rent you will have to serve the tenant a 60-day notice.
If you don’t accept rent and just want to terminate the lease you
may not use self-help. If your tenant refuses to vacate you must file
an unlawful detainer (eviction). Your tenant can still contest the eviction
even on a fixed term lease and is still entitled to a trial.