Many landlords have trouble navigating the law when it comes to what type of eviction notice to use. A 30-day notice to vacate can be used to terminate at will tenancies, commercial month to month tenancies, and residential tenancies that have lasted under one year. If you are looking for a proper 30-day notice, click here.
When to Use a 30 day notice to terminate a Tenancy at Will
A tenant who is legally an at-will tenant is someone who (1)enters onto the property for an indefinite period (2) when NO rent is paid or reserved.
The big difference between having a tenant at will versus the creation of another tenancy is that NO rent is paid or called for but the person is allowed to stay on the premises.
An example of a tenant at will would be someone like a grand-child who you let stay with you and does not pay rent.
In order to terminate a tenancy at will, you will need to hand the tenant a 30-day notice to quit by personal delivery or in another method of service authorized by the unlawful detainer statute.
If the tenant at will not leave after the 30th day of service you can file an unlawful detainer (eviction) against the tenant.
Remember that even if the person is a tenant at will they can still only be removed by going through the proper eviction procedure.
When to use a 30 day notice to vacate to evict a commercial month-to-month tenant
If you have a tenant that is in a commercial tenancy you would like to evict you may use a 30-day notice if the tenant is NOT on a fixed term lease.
If the commercial tenant is on a fixed term lease you cannot evict for any reason and would have to follow the provisions in the lease to evict the tenant if you know longer want them there.
Always note that if you accept money after termination of a tenant’s tenancy you have waived your right to evict. If such is the case you must start all over with a new notice.
Once the thirty days have expired after serving a commercial tenant AND you have not accepted any further rent you may begin an unlawful detainer to get back the premises.
You are not allowed to use self-help in order to evict and must go through the eviction process or you could be sued by the commercial tenant.
Commercial Leases May Alter the Rules For Terminating the Tenancy
The biggest hurdle commercial landlords have with terminating a tenancy is service of the notice of termination.
In a commercial tenancy, it is important to examine the lease and how, who, and where to serve the notice of termination. Commercial lease contracts often have special service terms that must be followed in order to evict the tenant.
If these terms are not followed you may be unable to evict your commercial tenant.
When to use a 30 Day Notice to Vacate to Terminate a Residential Tenancy
If you have a residential tenant that has occupied the premises for LESS than one year you may use a 30 day notice to terminate their tenancy.
Most importantly, any landlord or agent who wishes to terminate a residential tenancy using a 30 day notice must include the following language that states in substantially the same form the following language taken from Civil Code 1946:
“State law permits former tenants to reclaim abandoned personal property left at the former address of the tenant, subject to certain conditions. You may or may not be able to reclaim property without incurring additional costs, depending on the cost of storing the property and the length of time before it is reclaimed. In general, these costs will be lower the sooner you contact your former landlord after being notified that property belonging to you was left behind after you moved out.”
This language is taken directly from Civil Code Section 1946 which governs the termination of tenancies pursuant to that chapter and was changed in 2013 to include the above provision.
If your thirty day notice to vacate does not have the above provision and you file an unlawful detainer against your tenant. All the tenant needs to do is point out that your 30 day notice does not comply with the law and judge will toss out your case.
If the tenant has an attorney and there is an attorney’s fees clause in a contract and the tenants attorney gets the case dismissed you will owe the tenant reasonable attorney’s fees if a contract so provides.
Also, a 30 day notice to quit will not work if you have contracted with your tenant to stay for longer. If that is the case the lease or rental agreement will generally govern the termination of the tenancy. If you have signed a contract with your tenant you may only be able to evict under certain circumstances such as failure to pay rent, or breach of lease covenants.
How to properly serve a 30 Day Notice
The rules governing service of a 30 day notice are found in Code of Civil Procedure §1162 which states service may be done as follows:
“(1) By delivering a copy to the tenant personally.
(2) If he or she is absent from his or her place of residence, and from his or her usual place of business, by leaving a copy with some person of suitable age and discretion at either place, and sending a copy through the mail addressed to the tenant at his or her place of residence.
(3) If such place of residence and business cannot be ascertained, or a person of suitable age or discretion there can not be found, then by affixing a copy in a conspicuous place on the property, and also delivering a copy to a person there residing, if such person can be found; and also sending a copy through the mail addressed to the tenant at the place where the property is situated. Service upon a subtenant may be made in the same manner.
(b) The notices required by Section 1161 may be served upon a commercial tenant by any of the following methods:
(1) By delivering a copy to the tenant personally.
(2) If he or she is absent from the commercial rental property, by leaving a copy with some person of suitable age and discretion at the property, and sending a copy through the mail addressed to the tenant at the address where the property is situated.
(3) If, at the time of attempted service, a person of suitable age or discretion is not found at the rental property through the exercise of reasonable diligence, then by affixing a copy in a conspicuous place on the property, and also sending a copy through the mail addressed to the tenant at the address where the property is situated. Service upon a subtenant may be made in the same manner.
(c) For purposes of subdivision (b), “commercial tenant” means a person or entity that hires any real property in this state that is not a dwelling unit, as defined in subdivision (c) of Section 1940 of the Civil Code, or a mobilehome, as defined in Section 798.3 of the Civil Code. [Amended by Stats. 2010, Ch. 144, Sec. 1. Effective January 1, 2011]”
If a notice to quit is defectively served, the court may refuse to evict the occupant. The eviction laws in California are very technical and comprehensive and must be followed specifically.
How to make sure your 30 day eviction notice is served properly
The best way to make sure you have proper proof that a tenant was served their eviction notice is to use a sheriff or process server to deliver the notice to vacate upon your tenant.
A sheriff's or marshal's return of service is prima facie evidence of the facts stated in the return. Government Code §§26662, 71265.
Also, Evidence Code §647 creates a presumption, affecting the burden of producing evidence, that the facts stated in a return of service signed by a licensed process server are true.
If the tenant denies service of the notice and the eviction becomes contested, the proof of service from the sheriff or process server can be used as evidence that the notice was served in lieu of someone actually testifying.
Having a registered process server serve the notice not only speeds up trial but also flips the burden on the tenant to prove they weren’t served instead of putting the burden on the landlord to prove the tenant was served.
For a more comprehensive guide to eviction notices please click here.
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